LEMMON -v- WALKER-MCLEAN [2019] WASC 475 (31 December 2019)

1. There was no dispute about the applicable principles and they may be summarised as follows:[1]

(a) The principle of appellate restraint means that an appellate court can only intervene if the appellant demonstrates either and express or implied material error of fact or law - an appellate court cannot intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge.

(b) A ground of appeal that asserts a breach of the totality principle asserts the existence of implied error. The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.

(c) In determining whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to offences of that nature, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.

(d) The guidance afforded by roughly comparable cases is flexible rather than rigid. Caution is needed when considering past cases to assess sentencing patterns. Each case is sensitive to its own particular facts.[2] There is no single correct sentence.

1. The four offences of driving while disqualified with which this appeal is concerned were committed in April, June, July and August 2019.

1. The April offence was committed on 12 April 2019 - at 4.15 am the appellant drove an unlicensed vehicle fitted with false plates on the Great Northern Highway in Upper Swan. The vehicle had an unrestrained load. At the time the appellant committed the April offence she had four previous convictions for offences of driving while disqualified committed within the previous seven months, with two further such charges pending (including an offence committed the previous day). The appellant was subject to a community‑based order imposed on 28 November 2018 for several offences, including one count of driving while disqualified.
2. On 29 May 2019 the appellant did not appear at the second mention of the charges arising out of the 12 April 2019 offending. In her absence, the appellant was convicted of all of the charges and fines were imposed for all of the offences other than the offence of driving while disqualified.
3. On 1 July 2019 the appellant was sentenced to a term of imprisonment of 6 months and 1 day for the April offence suspended for nine months. Although convicted in her absence, the appellant received a 25% discount on the sentence that would otherwise have been imposed. The appellant was also disqualified from holding or obtaining a driver's licence for nine months and the appellant's community‑based order was cancelled and reimposed for a further nine‑month term.

1. The June offence was committed on 16 June 2019 - at 3.40 pm the appellant drove an unlicensed vehicle fitted with false plates on Hare Street in Lamington. At the time the appellant committed the June offence she had five previous convictions for offences of driving while disqualified committed within the previous seven months, with three further such charges pending. The appellant was also subject to the community‑based order imposed on 28 November 2018.
2. On 1 August 2019 the appellant entered guilty pleas to the charges described in the preceding paragraph. The appellant was sentenced to a term of imprisonment of 6 months and 1 day suspended for nine months in respect of the June offence. The appellant was also disqualified from holding or obtaining a driver's licence for nine months. Fines were imposed in respect of charges of driving an unlicensed vehicle and driving a vehicle fitted with false plates.

1. The July offence was committed on 28 July 2019 - at 12.10 am the appellant drove a vehicle on Barana‑Booranas Road near Goldfields Highway, Williamstown. At the time the appellant committed the July offence she had six convictions for offences of driving while disqualified committed within the previous 10 months, with two further such charges then pending. The appellant was also subject to the suspended imprisonment order made in respect of the April offence, as well as the community‑based order which had been reimposed on 1 July 2019.

1. The August offence was committed on 26 August 2019 - at 6.42 pm the appellant drove a vehicle on Lionel Street near Johnson Street in Kalgoorlie. When stopped by the police she gave the explanation that she needed to go to the shops to buy some milk. At the time the appellant committed the August offence she had eight previous convictions for offences of driving while disqualified committed within the preceding 11 months, with one further such charge pending. The appellant was also subject to suspended imprisonment orders for the April offence and the June offence as well as the community‑based order which had been reimposed on 1 July 2019.
2. A matter of particular significance was that the appellant had appeared in the Kalgoorlie Magistrates Court for the first mention of the July offence earlier on 26 August 2019. She committed the August offence within hours of leaving the court.
3. After she was apprehended committing the August offence the appellant was arrested and taken into custody. She entered a plea of guilty on 27 August 2019. At the hearing on 27 August 2019 the appellant offered a further explanation for her offending, namely, that she had driven in order to give her car to a friend so that she would no longer be tempted to drive and had stopped to get milk along the way.

1. The magistrate was provided with limited information about the appellant's personal circumstances. On the basis of the transcripts of the hearings on 1 July and 27 August 2019 it appears that the information available to the magistrate was as follows:

(a) The appellant was 31 years and three months old when sentenced on 27 August 2019.

(b) The appellant was in a supportive relationship and assisted with the care of her partner's son.

(c) The appellant's twin infants died when 10 days old in 2016 and that after this tragic event the appellant's life took a 'downward spiral'.[3] No other information regarding the appellant's personal or family history appears to have been available to the sentencing magistrate.

(d) The appellant's criminal record reflects the appellant's descent into a pattern of repeat offending from July 2018 onwards. The criminal record is summarised in annexure A to these reasons. Apart from an isolated conviction for a contravention of s 49(1)(a) of the RTA in June 2009, the appellant had no convictions until January 2017 when she was convicted of gaining benefits by fraud in respect of which fines were imposed and spent conviction orders made. The repeat offending that culminated in the appellant's appearance before the Magistrates Court on 27 August 2019 commenced in July 2018.

(e) The appellant was unemployed - I infer that this was so because no mention was made of the appellant's employment or any employment history and the description of the appellant's circumstances suggested that she was unemployed.

(f) The appellant had 'addiction issues' for which she hoped to receive treatment in a rehabilitation programme.[4] She began using methylamphetamine following the death of her children. At the hearing on 1 August 2019 at which the appellant was sentenced for the June offence it was said on the appellant's behalf that she committed the offence 'in the grip of a meth addiction'.[5] She had expressed her desire to overcome her addiction but had not taken any effective action towards doing so.

(g) The appellant had not complied with the obligations of the community‑based order imposed in November 2018. The appellant had told Community Corrections Officers that her non‑compliance was due to health issues, but she had been unable to verify that was so by the production of medical certificates.

1. The maximum penalty for each of the relevant offences was a fine of not less than 20 PU ($1,000)[6] and not more than 80 PU ($4,000) and 18 months' imprisonment. The court must order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than nine months and not more than three years.[7] All periods of driver's licence disqualification must be served cumulatively.[8]

1. Driving whilst under suspension involves an element of disobedience of an order of the court that means that the offence is regarded as serious. Where the offence is committed a number of times it may readily be inferred that the disobedience is wilful. Repeat offending requires weight to be given to personal and general deterrence.[9]
2. In Neves v Rogers[10] Beech J observed:

Sentencing patterns from multiple offences of driving while under suspension have been examined in a number of cases. Caution is needed in considering the pattern of sentences. They should not be considered in a blunt mathematical way. Each case is sensitive to its own particular circumstances. Nevertheless, consideration of numerous previous cases reveals a relatively stable pattern of sentences at least for driving under suspension.

Convictions of driving while under suspension involving fourth, sixth seventh or eighth such offences have commonly resulted in terms of imprisonment of between 4 and 9 months.[11]

The pattern of sentences of imprisonment for multiple offences of driving while under suspension, including those in circumstances where there is a long history of prior convictions for the same or similar offences, shows that aggregate sentences in the region of 10 to 12 months are commonly imposed.[12]

1. Other cases cited by the parties were Anderson v Stilwell,[13] Kearney v Rinaudo,[14] Sheiner v Roberts,[15] Sterle v Wyborn,[16] Jackson v Mitchell[17] and Jackman v Davidson.[18]
2. In Anderson v Stilwell the appellant had been sentenced to 2 years' imprisonment for three offences of driving while suspended, the latter two of which had been committed while on bail. His appeal was allowed and Blaxell J reduced the total effective sentence to 20 months' imprisonment.
3. The first offence had been committed on 3 March 2006. The second offence had been committed on 3 April 2006 and was exacerbated by a reckless driving offence, in circumstances where the appellant genuinely believed he was driving to prevent a suicide attempt. While adjourning a sentencing hearing for those matters, the presiding Magistrate warned the appellant not to drive again.[19] Notwithstanding that warning, on 21 May 2006 he drove to the chemist to get medication. He was sentenced to 8 months' imprisonment (cumulative) on each of the three charges.
4. On appeal, Blaxell J accepted that cumulation was appropriate and an effective term of 16 months' imprisonment would have been insufficient.[20] However, the sentence on the second charge was reduced to 4 months' imprisonment (cumulative), having regard to the strong mitigating circumstances of that offence.[21]
5. In her oral submissions counsel for the appellant distinguished Anderson v Stilwell from the present case on the basis that the appellant in Anderson v Stilwell was parole at the time of the offending that led to the imposition of the terms of imprisonment the subject of the appeal.
6. I note that the appellant's convictions in Anderson v Stilwell were his twelfth, thirteenth and fourteenth offences. Perhaps of more relevance in terms of considering the guidance to be derived from Anderson v Stilwell is that although the appellant's case on appeal was argued on the basis that the sentences imposed at first instance infringed the totality principle, Blaxell J was of the view that the real issue was whether the individual sentences were proportionate to the degree of criminality involved. His Honour held that having regard to the mitigation put forward in respect of one of the three offences, a sentence of imprisonment of 4 months as opposed to 8 months should be imposed for that offence.
7. In Kearney v Rinaudo the appellant had been convicted of two offences of driving without authority. The first offence was committed in May 2006 and the second was committed in October 2006, while the appellant was the subject of a pre‑sentence order in respect of the May offence. In respect of each offence the appellant was sentenced to a term of imprisonment of 12 months and the terms were ordered to be served cumulatively. Hasluck J allowed the appeal on the ground that the sentences of 12 months' imprisonment were excessive when regard was had to established sentencing patterns. His Honour set aside the terms of 12 months and resentenced the appellant to terms of imprisonment of 9 months, to be served cumulatively. The appellant had an extensive traffic record, with convictions for driving under the influence, refusing a breath test, wilfully misleading police officers and disobeying a patrolman's signal.
8. The respondents submitted that the appellant's circumstances and offending resembled those of the appellant in Kearney v Rinaudo.
9. In Sheiner v Roberts the appellant had been sentenced to 18 months' imprisonment for, relevantly, five charges of driving under suspension. Her appeal was allowed and McKechnie J reduced the total effective sentence to 8 months' imprisonment.
10. The appellant in Sheiner v Roberts was sentenced on 18 June 2009.[22] Her last driving offence had occurred on 6 November 2008.[23] Though there were later drug‑related offences, she had ceased her persistent offending and it was accepted that she was in the process of rehabilitating herself.[24]
11. In Sterle v Wyborn the appellant had been sentenced to 16 months' imprisonment for three offences of driving under suspension, two of which had been subject to suspended terms of imprisonment which had been activated by committing the third offence. Her appeal was allowed and Martino J reduced the total effective sentence to 11 months' imprisonment.
12. The three offences in Sterle v Wyborn had been committed by the appellant over a period of more than 15 months. The appellant had not committed any further offences between the last offence on 25 August 2015 and her being sentenced to a term of imprisonment on 16 October 2015. It was accepted to the appellant's credit that she had been endeavouring to change her life and had been complying with the terms of an intensive supervision order.[25]
13. The appellant's counsel emphasised the similarities between the present case and Sterle v Wyborn and focussed on the fact that Ms Sterle had 12 previous driving offences without a valid licence, six of which had been committed whilst under suspension, and she had also breached two suspended imprisonment orders with the most recent offending. Ms Sterle's offending was not aggravated by speeding or reckless driving.
14. The respondents distinguished Sterle v Wyborn on the basis that Ms Sterle, who had a long history of substance misuse, had taken steps towards rehabilitation. She had made significant progress in developing a prosocial lifestyle and had disassociated herself from old acquaintances.
15. In Jackson v Mitchell the appellant had been sentenced to 20 months' imprisonment for nine offences, the last three of which (including one of driving while suspended) had been committed while subject to a conditional suspended imprisonment order for the previous six (including two of driving while suspended). The appellant's appeal on the ground of totality was unsuccessful, though his sentence was reduced by 1 month to account for time spent in custody.
16. The three offences of driving while suspended were committed on 19 September 2018, 22 September 2018, and 19 December 2018. The latter two were exacerbated by failing to stop for police and, on the last occasion, reckless driving to escape pursuit.
17. In Jackman v Davidson the appellant had been sentenced to 18 months' imprisonment for three offences, including two counts of driving while disqualified (each taken to be fifth offences for sentencing purposes).[26] His appeal on totality grounds was dismissed (though successful on parole eligibility).
18. The first driving while disqualified offence occurred on 16 February 2019 and was exacerbated by an offence of careless driving causing bodily harm. The second occurred on 18 April 2019 and was exacerbated by driving with a blood alcohol content exceeding 0.05 g per 100 ml.

1. Before turning to the magistrate's sentencing remarks at the hearing on 27 August 2019 it is to be noted that at the hearings on 1 July and 1 August 2019 the magistrate gave the appellant very clear warnings about the consequences that would flow from further re‑offending by her.
2. At the hearing on 1 July 2019 the magistrate explained that he had re‑imposed a new community‑based order and imposed a suspended prison sentence because:[27]

HIS HONOUR: Now, the reason I'm doing that is because I have been told that you've reached that point now where you appreciate you must do something in relation to your methylamphetamine problems. Okay?

ACCUSED: Yes. I have, your Honour.

HIS HONOUR: You're dedicated to doing that but you've got some support. There's a gentleman in the back of the court, but can I say this to you, Ms Lemmon - just so that in your heart you will know that you can't say you haven't been warned - no one is going to feel sorry for you if you don't make a proper effort and if you go out and commit other offences and put other members of the community at risk. Fair enough?

ACCUSED: Yes, your Honour. Yes. Fair enough, your Honour.

1. At the 1 August 2019 hearing, after imposing the suspended term of imprisonment, the following exchange took place:

HIS HONOUR: Now, what that means is this, you are now on two suspended terms of imprisonment.

ACCUSED: Yes.

HIS HONOUR: So one was imposed on 1 July and it had nine months suspension, six months and a day for nine months. You've now got another one on 1 August which will run for nine months. Okay.

ACCUSED: Sorry, do they run one after another?

HIS HONOUR: No, they run concurrently, but what you need to understand is that if you breach by reoffending you could be liable to serve cumulative terms, okay.

ACCUSED: Yes.

HIS HONOUR: So you could be looking at least 12 months if you were to reoffend just on what's suspended, plus whatever other sentence you might get for a breaching offence.

ACCUSED: Yes.

HIS HONOUR: Do you understand that, Ms Lemmon?

ACCUSED: I do, your honour.

...

HIS HONOUR: ... and obviously any driving offence is almost going to guarantee you go into prison.

ACCUSED: I think that has scared the - excuse my French - shit out of me enough to pull my head in.

1. At the hearing on 27 August 2019 the magistrate was required to deal with eight matters: two new offences of driving under suspension, two breaches of suspended terms of imprisonment and four breaches of community‑based orders.
2. In the course of the magistrate's sentencing remarks his Honour:

(a) recorded that the appellant's counsel accepted that a term of immediate imprisonment was the only appropriate sentence;

(b) noted the appellant had been warned that further offending by her would result in a term of immediate imprisonment and that she had been afforded every opportunity to avoid this outcome;

(c) said that he did not accept the appellant's explanations for her driving;

(d) referred to the need for personal and general deterrence;

(e) referred to the totality principle and the need to make sure that the overall term of imprisonment was not crushing, but said that there was a need for some cumulation in the sentences;

(f) described the appellant's offending on 26 August 2019 - some hours after her appearance in court for the July offending - as brazen;

(g) referred to the tragic death of the appellant's children and the appellant's addiction to methylamphetamine, and accepted that the death of the appellant's children explained her drug use; and

(h) after imposing the four sentences of imprisonment, observed that if the appellant was required to serve each sentence cumulatively it would involve a sentence of 2 years' imprisonment and, taking into account the totality principle, that would be too great a sentence, and ordered that one of the terms of imprisonment should be served concurrently and that a sentence of 18 months' imprisonment reflected the 'totality of the [appellant's] offending'.

1. The appellant's offending can only be described as serious. It involved a complete disregard for the law and persistent wilful disobedience to the orders of the court. The appellant's offending on 26 August 2019 was particularly egregious as it took place within hours of the appellant's first appearance in court in respect of the July offence.
2. The appellant's offending did not, however, involve any element of dangerous or reckless driving.
3. The appellant's offending may be distinguished from the patterns of driving whilst under suspension offending commonly seen. In many instances repeat offences of driving under suspension are committed over many years. In this case the appellant's offending took place within the space of a year and against the background of the appellant having no criminal record of significance for the first 30 years of her life. It is not a typical example of recidivist offending of this kind. The nature of the appellant's offending and the rapid development in its seriousness draws attention to the appellant's personal history.

1. Bearing in mind the need for appellate restraint, it was with some hesitation that I concluded that the sentence imposed by the learned magistrate infringed the totality principle - it was unreasonable. The appellant had demonstrated that she was capable of leading a law‑abiding life. She had been law abiding for the majority of her life -until the period of repeat offending began in July 2018. Her offending coincided with her developing addiction to methylamphetamine. It was not unreasonable for the magistrate to accept that the death of the appellant's children provided the explanation for her drug use. The appellant had not previously been sentenced to a term of imprisonment to be served. A total effective sentence of 18 months' imprisonment was unreasonable because it was not required to meet the requirements of personal or general deterrence. Given the appellant's personal history, in particular, that she had been a person who had abided by the law for the majority of her life, a term of immediate imprisonment of 12 months was sufficient to meet the requirements of personal deterrence. A sentence of 12 months' imprisonment to be served adequately fulfilled the requirement for general deterrence.
2. I also considered that the total effective sentence of 18 months' imprisonment was manifestly excessive. While recognising that the sentences imposed in other cases provide no more than flexible guidance, I was not persuaded that the circumstances of the appellant's offending and her personal circumstances were deserving of a total effective sentence that departed by such a large margin from the sentencing range of an aggregate of 10 to 12 months.

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

[1] Kershaw v The State of Western Australia [2014] WASCA 111 [22] - [24] (McLure P); Bui v The State of Western Australia [2019] WASCA 186 [15] (Buss P, Mitchell & Vaughan JJA).

[2] Neves v Rogers [2013] WASC 440 [40] (Beech J); Sterle v Wyborn [2016] WASC 19 [19] (Martino J).

[6] A PU, or penalty unit, is $50: Road Traffic (Administration) Act 2008 (WA) s 7.

[7] RTA s 49(1)(c)(ii).

[8] RTA s 49(8).

[9] Lyon v Read [2012] WASC 96 [25] (EM Heenan J); Neves v Rogers [28], [48].

[11] Mears v Holleman [2010] WASC 39 [24]; Gable v Nardini [2010] WASC 321 [34]; Yuksel v Marchesani [2011] WASC 57 [30] - [31]; Vince v Martyn [2013] WASC 60 [15].

[12] Palmer v Dwyer [2010] WASC 28 [35].

[13] Anderson v Stilwell [2006] WASC 257.

[14] Kearney v Rinaudo [2007] WASC 104.

[15] Sheiner v Roberts [2009] WASC 281.

[16] Sterle v Wyborn [2016] WASC 19.

[17] Jackson v Mitchell [2019] WASC 372.

[18] Jackman v Davidson [2019] WASC 364.

[20] Anderson v Stilwell [19] - [20].

[21] Anderson v Stilwell [21] - [25].

[25] Sterle v Wyborn [2016] WASC 19 [24].