LOGAN -v- KUSER [2008] WASC 65 (29 April 2008)

Immediate or suspended imprisonment - 'One transaction rule' - Deduction for plea of guilty - Whether sentence manifestly excessive - Totality principle

Criminal Appeals Act 2004 (WA)

Road Traffic Act 1974 (WA)

Sentencing Act 1995 (WA)

Total sentence of 7 months conditionally suspended imprisonment substituted

1 JOHNSON J: The appellant appeals against the total sentence of 14 months' immediate imprisonment imposed on him for three traffic offences on the ground that the sentence should have been suspended and also on the ground that the sentence was manifestly excessive.

2 On 11 December 2007 the appellant pleaded guilty to three offences committed on 1 September 2007. The offences were driving under the influence of alcohol contrary to s 63(1) of the Road Traffic Act 1974 (WA) (the Act), driving whilst disqualified contrary to s 49(1) and s 49(2)(a)(iii) of the Act and speeding contrary to s 11(3) of the Road Traffic Code 2000 (WA).

3 The appellant was sentenced to 9 months' imprisonment for the offence of driving under the influence, which was his third conviction. For the offence of driving whilst disqualified, which was the appellant's second conviction for that offence, the appellant was sentenced to 5 months' imprisonment. The sentence of 5 months' imprisonment was ordered to be served cumulatively on the 9-month sentence for driving under the influence. In relation to the speeding charge, the appellant was fined $200. The appellant's licence was disqualified for life.

4 The offences occurred at 2.15 pm on Saturday 1 September 2007 when the appellant drove his vehicle on Mandurah Road, Mandurah which is an 80 kph zone. The radar trained on his vehicle registered a reading of 94 kph. The appellant was taken to Mandurah Police Station where he underwent a breath analysis test which gave a reading of 0.184% at the time of driving. Further inquiries also revealed that the appellant's licence had been suspended on 29 April 2005 for a period expiring on 28 October 2007.

5 The explanation provided on behalf of the appellant was that on the night before the offences he had met up with a long-time friend who had arrived from the Eastern States and was due to return there on the following day. They had consumed alcohol until the early hours of the morning. The friend required a lift back to Rockingham to be able to get another lift to the airport. The appellant's partner refused to drive the vehicle so the appellant 'took it upon himself to drive, so he took the risk'. The appellant drove to Rockingham and dropped off his friend. At Rockingham the appellant had a further three or four beers with his friends before again driving his vehicle and being apprehended by the police. The Magistrate expressed the view that the circumstances as described were in no way mitigatory, and counsel for the appellant conceded that they were merely explanatory.

6 The court was also informed that the appellant was 39 years old at the time of the offence and had been employed all his life. The appellant first offended on 24 September 2004 when he committed the offences of reckless driving and driving under the influence. He pleaded guilty to those charges and on 11 October 2004 was fined for each offence and had his licence suspended for 12 months on the reckless driving charge and 6 months on the charge of driving under the influence. On 11 October 2004 the appellant was convicted of breaching bail. On 4 March 2005 the appellant's licence was suspended for 3 months due to an accumulation of demerit points. Then on 29 April 2005 the appellant was dealt with for the offences of driving under suspension and driving under the influence, both of which occurred on 24 March 2005. The driving under suspension charge resulted in a fine and a further 9-month licence suspension. The driving under the influence charge resulted in a fine and a 30-month licence suspension. During this period of time the appellant was also convicted of possessing a smoking implement, possession of a prohibited drug with intent and simple possession of a prohibited drug, with all offences resulting in fines.

7 The comparatively late onset of the appellant's offending was explained by the fact that the appellant's long term relationship broke up which caused him to act erratically. However, the court was told that in the past two years the appellant had entered into a new relationship as a result of which he was supporting a de facto partner and her two children aged 14 and 17 years.

8 It was further submitted that the court should take into consideration the fact that the appellant's window of offending was relatively recent and that, apart from these convictions, and some other minor convictions described as not strictly relevant, the appellant has been a man of good character.

9 The Magistrate took issue with the proposition that the appellant's convictions could be put to one side in assessing his character. The Magistrate observed that in less than three years the appellant had been convicted three times of drunken driving and on two occasions for driving under suspension. However, the Magistrate agreed that the fact that the appellant had not offended until October 2004 should be given appropriate weight. The Magistrate also noted that, despite being in the new relationship, the appellant had continued to offend, both on 24 March 2005 and on 1 September 2007. Counsel for the appellant conceded that this was the case.

10 With respect to the proposition that the court should take into account that the appellant's partner and two children were wholly dependent on him, the Magistrate noted that the children were not the appellant's children. Counsel explained that, nevertheless, the appellant's role within the relationship was as a father to the children. The Magistrate enquired about the appellant's partner's separate income and was advised that she received irregular income from part time cleaning work and did not receive any income from social security payments.

11 Counsel for the appellant also relied on the fact that the appellant had entered pleas of guilty at the first reasonable opportunity. The Magistrate conceded that the appellant was entitled to the 'appropriate acknowledgment' for his guilty pleas but noted that the pleas were entered in circumstances where the prosecution case was overwhelming.

12 The Magistrate also noted that the appellant had $6,869 in outstanding fines, leading him to express the view that the point had been reached where fines were having little impact on the appellant's behaviour. Counsel for the appellant stated that his instructions were that some of the fines which had accrued were those of the appellant's previous partner and the appellant was paying them off at $150 per fortnight on a $49,000 per annum income.

13 The affidavit of the appellant filed on appeal includes information which was not provided to the court at the time of sentencing. The appellant states that in 2004 he and his girlfriend of 10 years separated and his father passed away. At some point 'after all of that' the appellant received counselling for drugs and alcohol which he says helped him a lot. He also states that he met his present partner two and a half years ago and maintains that he has only made the one mistake since he has been with her, which is a reference to the offences committed on 1 September 2007. The appellant also deposes to the financial and emotional difficulties experienced by his partner and her children since his imprisonment. The appellant states that he has employment available to him on his release from prison which does not involve driving.

14 In passing sentence the Magistrate noted that the appellant's driving had occurred on a major road between Perth, Mandurah and Bunbury which carries substantial traffic, particularly at the time of day the offences occurred. The Magistrate also considered that the appellant's blood alcohol level made the appellant an ongoing risk to anyone else on the road at the time. In fact, the issue of the risk involved in the appellant's conduct was emphasised by the Magistrate in the following terms:

It's that risk to other members of the community that means that drunken driving is regarded as a serious criminal offence and not some sort of social misdemeanour. The combination of speed and alcohol results in traffic accidents which kill and seriously injure other law-abiding members of the community so that to drive under the influence of alcohol shows a complete lack of regard for the rights and safety of other people in the community and a complete lack of regard for the law, more so in your situation where not only were you driving with a considerable quantity of alcohol in your blood, at speed, but you were driving under suspension.

15 In determining the appropriate disposition for the offences, the Magistrate again observed that the imposition of fines had had no impact on the appellant's behaviour and were of limited worth. A supervision order was not considered appropriate because it would not reflect the circumstances of the offences. According to the Magistrate, the only protection the courts can provide from those who drink and drive is to suspend their licence. Consequently, when the court's suspension is ignored, there is little left that can be done other than to consider the option of last resort, a sentence of imprisonment. The conclusion drawn by the Magistrate was that the circumstances warranted a term of imprisonment.

16 The Magistrate next turned his mind to whether or not he should suspend the sentence to be imposed. He stated that he was not prepared to because of the fact that the appellant had been caught three times in three years for driving whilst drunk and twice he had driven under suspension.

17 The Magistrate referred to the suggestion that a suspended sentence of imprisonment would act as a deterrent and noted:

That might deal with the prospects of future offending, but it doesn't deal with the issues associated with your offending of 1 September. What concerns me most is that this didn't occur in the middle of the night in circumstances where the roads are clear. It occurred at 2.15 in the afternoon on a Saturday and, as I said, that reinforces what I've said earlier about the fact that this is a complete lack of regard for the law and the safety of others.

18 Prior to passing sentence the Magistrate referred to the deterrent aspect of the sentencing process and noted that it was broader than simply dealing with personal deterrence. The Magistrate noted that there must also be an element of general deterrence in circumstances where there is no doubt that those who drink and drive are involved in traffic accidents which kill other people.

19 In this ground the appellant alleges that the Magistrate's sentencing discretion miscarried when he determined to impose terms of immediate imprisonment when it was open to him to suspend the terms such that the sentence imposed was manifestly excessive.

20 On behalf of the appellant it was submitted that a sentence may be manifestly excessive because the wrong type of sentence has been imposed: Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 (McLure J) [20]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. I unreservedly accept that proposition and its application to the question of whether a term of imprisonment should or should not be suspended. It is also the case that a court may only impose a term of immediate imprisonment if it has decided that a disposition of suspended imprisonment is inappropriate: Dinsdale v The Queen [15] (Gleeson CJ and Hayne J).

21 In addressing this ground of appeal, counsel for the appellant relied on a statement made by the Magistrate to the effect that a suspended sentence 'might deal with the prospect of future offending, but it doesn't deal with the issues associated with your offending of 1 September'. It was submitted that it is apparent from this statement that the Magistrate erroneously discounted a suspended sentence on the basis that it afforded no penalty for the offences.

22 It was conceded on behalf of the appellant that the Magistrate, in dealing specifically with the question of suspension, later noted the fact that this was the appellant's third offence for driving under the influence and his second for driving under suspension. However, it was submitted that this observation by the Magistrate did not overcome the error in reasoning identified in the Magistrate's earlier comments.

23 I am not persuaded by either proposition. I do not accept that the meaning to be attributed to the Magistrate's statement is that he considered a suspended sentence to be insufficiently punitive. The Magistrate said this:

It has been suggested that a suspended sentence of imprisonment would act as a deterrent. That might deal with the prospect of future offending, but it doesn't deal with the issues associated with your offending of 1 September.

On my reading of this statement the phrase 'the issues associated with your offending' is a reference to the seriousness of the offences. Therefore, the Magistrate stated that even if he accepted that a suspended sentence would be sufficiently deterrent to prevent the appellant from offending in the future, such a penalty would not adequately reflect the very serious nature of the offending and the risks involved in it.

24 I concede that the construction contended for the appellant could be placed on the statement, but I see no reason why I should prefer a meaning inconsistent with principle, particularly where later comments made on the same issue are consistent with principle.

25 I consider the interpretation I prefer is reinforced by what was said by the Magistrate immediately after, when he observed:

What concerns me most is that this didn't occur in the middle of the night in circumstances where the roads are clear. It occurred at 2.15 in the afternoon on a Saturday and, as I said, that reinforces what I've said earlier about the fact that this is a complete lack of regard for the law and the safety of others.

This reference to the surrounding circumstances is, in my view, a clear reference to the risks involved in the appellant's conduct and his lack of regard for those risks as well as the legal obligations previously placed on him.

26 Having determined that a sentence of imprisonment is appropriate, the Magistrate immediately turned his mind to whether the term should be suspended and concluded that he was not prepared to do so 'because of the fact that you have been caught three times in three years, and twice you've driven under suspension, coupled with drunken driving'.

27 It is said that this later statement cannot overcome the error in the earlier statement. However, in my view, the statement is entirely consistent with the earlier observation in that it completes and reinforces the reasons why, in all the circumstances of this case, a suspended sentence was not considered to be appropriate. Those reasons are the Magistrate's clearly held view that the circumstances of the offences were very serious and the appellant's repeated disregard for the law and the safety of others.

28 In R v Liddington (1997) 18 WAR 394 [406] Steytler J stated that the prospect of rehabilitation is not the only relevant factor when considering whether or not to suspend a sentence of imprisonment and nor should it be the determining factor. His Honour observed that there are many other factors which might become relevant and any one or more of them may prove to be decisive in any given case. Steytler J provided a list of factors which should be considered in addition to rehabilitation and specific deterrence. The list was stated by his Honour to not be exhaustive: [406]. Amongst the many factors identified by Steytler J, relevant to the facts of this case, are the perceived seriousness and intrinsic character of the particular offence, whether there was any element of persistence, general deterrence, the need to demonstrate the condemnation of the community for offences of that kind.

29 It is apparent that the factors considered by the Magistrate as outweighing the matters personal to the appellant were legitimate matters properly to be taken into account in determining the issue of whether to suspend a term of imprisonment. In my view, the statement on which the appellant relies does not support a finding of error on the part of the Magistrate.

30 As McKechnie J observed in O'Brien v Ritche (Unreported, WASC, Library No 990123, 17 March 1999) although suspended imprisonment is always open, in the case of persistent conduct the offender is more likely to have to demonstrate exceptional circumstances before suspended imprisonment will be imposed: see also Anderson v Heath [2005] WASC 253 [37] (Le Miere J). There is also authority for the proposition that it will be an unusual case where the circumstances of driving under disqualification support suspension of sentence: Mason v Morrison [2004] WASCA 181 [19] (Miller J). No doubt that is because defiance of the law is fundamental to the commission of the offence of driving under suspension or disqualification: Dearnley v Damon [2007] WASC 124 [49].

31 In this case, the appellant had previously driven whilst under suspension and had on two prior occasions been dealt with for driving under the influence of alcohol. As Martin CJ concluded in Findlay v The State of Western Australia [2007] WASC 61 [23] in cases where a repeated history of flagrant disregard for the safety of other road users is demonstrated, the protection of the public must be a dominant concern. His Honour also noted that personal deterrence is an important factor in road traffic matters, particularly when the circumstances of the offence are serious and the offender has a criminal record: [23].

32 In my view, the Magistrate properly addressed all relevant issues in reaching his decision. However, as I have noted, it is apparent that the Magistrate's decision not to suspend the sentence of imprisonment was based on the Magistrate's view of the very serious nature of the offences committed by the appellant and the element of persistence involved in them.

33 Whilst I share the Magistrate's view of the seriousness of the appellant's offences I am bound by the decisions of the Full Court in McDonald v White [2007] WASC 138 and Moody v French [2008] WASCA 67. In both cases the Full Court noted that the cases dealing with appeals from sentences imposed at first instance for driving offences reflect some inconsistency in the length of the terms of imprisonment imposed for offences of that kind: McDonald v White [37]; Moody v French [63].

34 In McDonald v White, the offender had shown a repeated and blatant disregard for the law. She was convicted of an offence of unlawful damage to property, driving while her licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so. She made an early plea of guilty to each of the offences charged. She had five prior convictions for driving with a blood alcohol content in excess of 0.08%. She had been convicted on nine previous occasions of driving while her driver's licence was suspended or cancelled. She also had a conviction for manslaughter and convictions for assault, disorderly conduct and burglary. Surprisingly, she had never previously been sentenced to a term of immediate imprisonment. After a successful appeal, she was sentenced to an aggregate term of 10 months' imprisonment. That was made up by a term of 5 months' imprisonment in respect of the offence of driving under suspension, a further term of 5 months' imprisonment, to be served cumulatively, in respect of the offence of reckless driving and a term of 3 months' imprisonment in respect of the offence of unlawful damage to property, to be served concurrently with the other sentences. Fines had been imposed in respect of the remaining offences: McDonald v White [41].

35 In Moody v French, the appellant pleaded guilty to four driving offences. One offence of driving under suspension and one offence of driving with a blood alcohol content in excess of the statutory limit ('excess 0.08% offence') were committed on one occasion. Two more offences were committed approximately a month later. One offence was driving under suspension. The other offence was driving under the influence. All four offences were committed whilst the appellant was subject to a suspended sentence of imprisonment of nine months.

36 The appellant had five previous convictions for driving without a licence. She had two prior convictions for excess 0.08% offences and one prior conviction for driving with a blood alcohol level in excess of 0.05%. The appellant had three prior convictions for driving under the influence. At the time of sentence the appellant had a significant criminal record but had not previously been subjected to a term of immediate imprisonment of longer than four months. She had last offended some 3 1/2 years previously: Moody v French [65].

37 On each of the charges of driving under suspension, the appellant received a sentence of 9 months' imprisonment, to be served concurrently. On the charge of driving under the influence, the appellant was sentenced to a term of 12 months' imprisonment to be served cumulatively upon the nine month term. Disqualification orders were made. On the charge in respect of which a suspended sentence was in effect at the time of the commission of the driving offences, the appellant was ordered to serve a term of 9 months' imprisonment concurrently with the other terms. This made up a total of 21 months' imprisonment.

38 The Full Court decided that, taking into account all relevant factors, and particularly the appellant's poor criminal record, the appropriate sentence to be imposed in respect of the offence of driving under the influence was one of 10 months' imprisonment. The Full Court would have left the other sentences imposed by the Magistrate undisturbed. However, for totality reasons, the court ordered that the sentences be served concurrently, save for that in respect of the later offence of driving under suspension. The court further ordered that the term of 9 months' imprisonment be served partly concurrently with the other terms imposed and should be taken to have begun after the appellant had served three months of the terms imposed in respect of the other offences. The result was a total term of imprisonment required to be served by the appellant of 12 months' imprisonment.

39 On any interpretation, these two cases are serious examples of offences of the relevant type committed in circumstances where there is a clear need for personal deterrence in view of the number of prior convictions. Although these cases relate to the length of the term of immediate imprisonment, when one considers that the total term of imprisonment imposed by the Magistrate in this case exceeds the sentences imposed by the Full Court for offences of greater overall criminality, it is clear that the Magistrate's view of the degree of seriousness of the appellant's offending is not consistent with authority.

40 Contrary to the circumstances of the appellant in the two decisions of the Full Court to which I have referred, there were few matters personal to the appellant to mitigate his conduct other than his plea of guilty. According to the appellant's affidavit, he had received counselling for drug and alcohol abuse following the breakdown of his long term relationship. However, it is clear that despite being provided with that assistance he continued to use drugs, as evidenced by his prior convictions for possession of prohibited drugs and a smoking implement, and continued to consume alcohol to excess and then drive, despite having had his licence suspended. It is also the case that the explanation provided by the appellant for driving when his licence had been suspended, and in circumstances where he had been drinking alcohol well into the early hours of the morning, indicated nothing more than a deliberate decision to flout a court imposed sanction and to put the public at risk by driving in his highly intoxicated state.

41 There certainly were aspects of the appellant's conduct which increased the seriousness of the offences. The appellant aggravated his conduct by meeting up with friends and continuing to drink when he had driven his friend to where he wished to go. He then drove home and was apprehended by police on the way. Further, the appellant's blood alcohol level was high and he was driving in excess of the speed limit on a busy major road in the middle of the afternoon where the risk to the community of his conduct was significant.

42 However, although the decision in Findlay v The State of Western Australia [23] identifies as a dominant concern the protection of the public in cases where there is a repeated history of flagrant disregard for the safety of other road users, in Findlay v The State of Western Australia the number of prior convictions was more extensive than those of this appellant, as was also the case in McDonald v White and Moody v French. Further, the appellant's record for non-traffic offences was minor and only commenced in 2004.

43 Although the appellant had not been deterred from offending by the imposition of fines in relation to prior offences of the same type, and it would appear that he was not even in the habit of paying his fines, it is also the case that the appellant had not previously been imprisoned nor had he previously been given the benefit of a suspended sentence or any type of non custodial disposition other than a fine.

44 For these reasons and in light of the approach adopted in McDonald v White and in Moody v French I have reached the conclusion that the Magistrate erred in the exercise of his discretion in finding that suspended imprisonment was not an appropriate disposition in the circumstances of the offences and of the offender.

45 Having reached that conclusion, under s 14(1)(d) of the Criminal Appeals Act 2004 (WA) I am entitled to substitute a decision which should have been made by the court of summary jurisdiction. In my view, where it is appropriate to suspend a sentence in relation to offences occurring as a result of the misuse of alcohol and where the appellant has a history of involvement with illicit drugs, it is appropriate to order that the sentence of imprisonment be conditional on compliance with programmes designed to address these issues so as to optimise the appellant's prospects of rehabilitation.

46 The second ground of appeal alleges that the Magistrate's sentencing discretion miscarried when he ordered that the two terms of imprisonment be cumulative upon one another, which order infringed the one transaction rule, such that the sentence was manifestly excessive.

47 The particulars of this ground are stated to be the appellant's personal circumstances, the appellant's plea of guilty and the totality of the criminality of his offending behaviour. It can be seen that much of the material to which I have already referred is relevant to the disposition of this ground of appeal.

48 On behalf of the appellant it was submitted that the Magistrate erred in ordering that the two terms of imprisonment be served cumulatively despite the fact that he accepted the offending was committed at the same time. In doing so, it was said, that the Magistrate breached the one transaction rule.

49 The effect of the one transaction rule is that where a number of offences are committed as part of one multi-faceted course of criminal conduct, either as part of a single transaction or of a continuing episode, any terms of imprisonment are to be made concurrent: McDonald v White [131]; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [26].

50 In R v Faithfull McLure J referred to Thomas D A, Principles of Sentencing (2nd ed) 53 in which the learned author identified the rationale for the rule to be that all the offences taken together constitute a 'single invasion of the same legally protected interest'. In Neely v Stonehouse (Unreported, WASC, Library No 950616, 15 November 1995) 6, Wheeler J concluded that the legally protected interest in each of the offences of driving under suspension and dangerous driving under the influence is quite different. Her Honour observed that the gravamen of the offence of driving while under suspension is disobedience of the order of the court, while the offence of dangerous driving causing grievous bodily harm is directed to the manner of driving and to its consequences. In my view, the same observation can be made where the other offence committed is driving under the influence, as in this case. The gravamen of that offence is also directed to the driving itself and the risk to public safety of driving whilst intoxicated.

51 In Bell v Wesley (2007) 49 WVR 134, 44 I expressed the view that, although it is open to the court to treat a single act of driving under suspension whilst intoxicated as part of one transaction, and therefore impose concurrent terms of imprisonment, the more usual approach is to accumulate the terms imposed for each offence. The observations of Wheeler J in Neely v Stonehouse indicate the rationale underlying that approach.

52 The one transaction rule is in fact only a guideline and there is no obligation to impose concurrent terms for multiple offences constituting one transaction: R v Faithfull (McLure J) [28]. A sentencing Judge must in each case consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; R v Faithfull [28]. Even if the one transaction rule is applied, the sentence imposed would have to be at a level which reflects the total criminality of the offender's conduct: Bell v Wesley [44]; R v Faithfull [24]. If the effect of concurrent or cumulative sentences is a sentence which does not reflect the total criminality of the offender's conduct, then the sentence must be adjusted.

53 Consequently, the only way in which it can be said that the Magistrate fell into error in ordering that the sentences imposed be served cumulatively is if the total sentence does not reflect the total criminality of the appellant's conduct. In that regard, counsel for the appellant has properly submitted that it is necessary for the court to consider the offending behaviour and all matters personal to the appellant, including his pleas of guilty.

54 Turning to the particulars relating to the appellant's plea of guilty, the combination of s 8(1) and s 8(2) of the Sentencing Act 1995 (WA) makes it clear that a plea of guilty is a mitigating factor which decreases the culpability of the offender or the extent to which the offender should be punished. Although a plea of guilty does not always translate into a reduction in sentence, for example where the offence falls within the worst category of offences deserving of the maximum sentence, it will have that effect in all but the most exceptional of cases: Moody v French [35]. Further, other than in such cases, some discount should be allowed even in a case in which the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility: Moody v French [38]. A plea in those circumstances still warrants some discount in recognition of the offender's willingness to facilitate the course of justice and perhaps, as indicating an acceptance of responsibility: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [22] (Gaudron, Gummow and Callinan JJ); Moody v French [36].

55 Whilst conceding that a plea of guilty is a mitigating factor, counsel for the State submitted that, where the plea of guilty is no more than an acceptance of the inevitability of a conviction in the fact of a strong prosecution case, the fact of a plea of guilty will have much less weight than it will in the case of remorse accompanied by a frank confession to the authorities: Aconi v The Queen [2001] WASCA 211 [24] (Steytler J); Findlay v The State of Western Australia [34] (Martin CJ). In my view, in the circumstances of inevitability that arose in this case, the proposition that the appellant's plea of guilty will have much less weight than it otherwise would, does not infringe the principles to which I have referred. However, there appears to me to be some tension between the conclusion drawn by Martin CJ in Findlay v The State of Western Australia and the decision of the Full Court in Moody v French.

56 The appellant's plea of guilty was specifically referred to by the Magistrate in his sentencing remarks. The Magistrate noted that the prosecution case was overwhelming but still conceded that the appellant was entitled to 'the appropriate acknowledgement of his guilty pleas'. Ordinarily, in Western Australia, fast track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances, although the reduction might be less where there is a late plea and an absence of any real remorse: H v The State of Western Australia [2006] WASCA 53 [9]. In the present case, the appellant's plea of guilty occurred in the context of an overwhelming prosecution case in which there were no apparent avenues of defence open to him. Certainly, the explanation for the offences raises no possible defence. Accordingly, I accept the submission made by counsel for the State that it was open to the Magistrate to give the appellant's plea of guilty little weight whilst nevertheless acknowledging that the appellant's plea has facilitated the course of justice and that he had accepted responsibility for his offence.

57 The maximum sentence for each of the offences for which the appellant was imprisoned was 18 months' imprisonment. When the one-third reduction which the Magistrate was obliged to make under the transitional provisions of the Sentencing Act 1995 is taken into account there has clearly been a deduction made for the plea of guilty, or to reflect the overall criminality of the offence in the particular circumstances of the appellant, or both. Consequently, the issue of whether the deduction given for the plea of guilty was appropriate in the circumstances will be answered by a consideration of whether the sentences imposed, individually and collectively, reflected the overall criminality of the offending, taking into account all the circumstances of this offender including the fact that he pleaded guilty.

58 The first observation which can be made is that the sentences imposed are well within the maximum penalties for repeat offences of driving under the influence and driving under suspension. Further, the difference between the two sentences can be accounted for by the fact that the offence of driving under the influence was a third offence and the offence of driving under suspension was a second offence.

59 When consideration is given to the appellant's personal circumstances, there is little which reduces the criminality of the appellant's conduct. One such factor is the plea of guilty, although in the limited circumstances to which I have referred. Another factor is that the appellant has always been gainfully employed. Indeed, in his affidavit the appellant states that he has immediate employment on his release from prison. The Magistrate accepted that it was in the appellant's favour that he did not commence offending until 2004 when he was 36 years old.

60 However, it must be observed that, having commenced offending, the appellant has continued to offend, and in the same manner, despite the fines imposed and despite undertaking counselling for his drug and alcohol problems. The appellant was 39 years old at the time of the offence and should have been sufficiently mature to know the risks involved in his conduct and to understand the importance of compliance with court based sanctions. Nevertheless, the appellant's record is comparatively minor, apart from the very serious factor that the appellant has re-offended in the same manner on three occasions in one case and two occasions in another.

61 Counsel who appeared for the appellant at the time of sentence submitted that the non traffic convictions were not strictly relevant to the offences before the court. In one sense that is correct. However, they do indicate the presence of a substance abuse issue in circumstances where the motor vehicle offences involved the abuse of alcohol.

62 The appellant commenced offending after the break down of his long term relationship and, it would appear from the appellant's affidavit, although it was not mentioned to the Magistrate, that his father passed away at around the same time. These factors may explain the appellant's conduct in turning to substance abuse but it does not provide an excuse. It was drawn to the Magistrate's attention that the appellant was now in a relationship. However, the Magistrate accurately observed that this relationship had not had a salutary effect on the appellant's behaviour as he had continued to offend. The appellant maintains in his affidavit that the current offences will be his last mistake but there has been nothing put before the court that evidences any change from the circumstances that applied immediately prior to the latest offending.

63 On behalf of the appellant it was further submitted that the court should have taken into account the fact that the appellant was the sole breadwinner for his partner and her two sons for whom he had accepted responsibility. I accept as an accurate statement of the law, the submission of counsel for the State that, as a general principle, a sentencing court disregards the impact which a sentence of imprisonment has upon members of the offender's family: Boyle v The Queen (1987) 34 A Crim R 202, 204 - 205 (Burt CJ). Further, in Hodder v The Queen (1995) 15 WAR 264 [287] Murray J observed that only in an exceptional case should the hardship, which a proper sentencing disposition will occasion to innocent third parties, be allowed to substantially mitigate the court's sentencing disposition.

64 Exception was taken by counsel for the appellant to the comments made by the Magistrate that the children 'are clearly not his children'. I accept that the appellant has accepted responsibility for the children and considers them to be his family. Without intending to understate the significance of that relationship to the appellant, I understand the Magistrate to have been referring only to the fact that the appellant has no legal responsibility to provide financially for the children. In those circumstances, the partner and the children may well be entitled to financial assistance from other sources. In any event, I have no doubt that there are many families who find themselves financially disadvantaged when a partner or parent is imprisoned. Such factors should be taken into consideration by the offenders before engaging in the illegal conduct, rather than by the courts when sentencing people who have little or no regard for the impact of their offending on others, including their own families.

65 Counsel for the appellant also submitted that the Magistrate should have taken into account that the appellant had nearly completed his suspension period when the offences were committed. He had therefore suffered the adverse impact of being unable to drive for a considerable period of time as well as the penalty imposed by the Magistrate for the offences. I have some difficulty with the proposition that the appellant should be given a benefit for partly complying with an order with which he was obliged to wholly comply. Where an offender breaches a conditional suspended sentence or an intensive supervision order after a period of compliance and is being re-sentenced for the offence, it is reasonable to take into account that the person has been subject to the inconvenience of complying with the order during the period before it was breached. That is because, if that inconvenience is not taken into account, the offender will suffer a greater penalty than is appropriate for the particular offence. The same result occurs where time in custody is not taken into account when imposing the sentence which would otherwise be appropriate for the offence.

66 However, those situations are very different to the one that applies in this case where the offender is being sentenced for a further offence rather than being re-sentenced for the same offence. In my view, the appellant should not have been given credit for the period of compliance with the disqualification order imposed for the previous offence. However, the offending would have been even more serious if the disqualification period had been breached almost immediately as such conduct would have shown an ever greater disregard for court imposed sanctions.

67 The factors relevant to the appellant, including his plea of guilty, which may reduce the overall criminality involved in his offending, must be considered in tandem with the circumstances of the offences. The appellant drove a vehicle at high speed on a busy road in the middle of the afternoon on a weekend with a significantly high blood alcohol level and when his licence had been suspended. He had on two prior occasions been convicted of driving under the influence of alcohol and he drove on this occasion without any remotely justifiable or understandable reason.

68 I have already referred to the decisions of the Full Court in McDonald v White and in Moody v French, the circumstances of the offenders in those cases and the circumstances of their offences. Unlike the plaintiffs in those two cases, there were few mitigating factors in the appellant's case. However, in view of the terms of imprisonment considered by the Full Court to be appropriate in those cases, I am unable to conclude that a greater sentence of imprisonment could be justified in relation to an offender with a comparatively minor history of previous offences of the same kind, who has not previously been subject to a term of imprisonment, either suspended or to be immediately served, and where the total criminality of his conduct is objectively less than that which applied to the appellants in McDonald v White and in Moody v French.

69 The conclusion I must reach then is that the total sentence imposed on the appellant by the Magistrate was inappropriately long, having regard to the course of criminal conduct viewed as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

70 The offence of driving under the influence is often described as serious because of the potential for harm to innocent members of the community. Similarly, the offence of driving under suspension represents a flagrant disregard of court imposed sanctions. Consequently, there is a strong argument for the imposition of sentences which are personally and generally deterrent. Where sentences of six months or less cannot be imposed and sentences of 10 and 12 months are considered to be appropriate for the commission of a number of offences of driving under suspension and driving under the influence by offenders who have numerous prior convictions for the same offences, I can understand the difficulty which courts at first instance face in identifying an appropriately deterrent term of imprisonment for an offender who commits offences of this type for the second or third occasion.

71 Being obliged now to re-sentence the appellant in accordance with the decisions to which I have referred, the conclusion that I have reached is that, as a result of the application of the totality principle, the sentence to be imposed for the offence of driving under the influence is one of 7 months' imprisonment and the sentence for the offence of driving under suspension should be one of 4 months' imprisonment, to be served concurrently with the sentence for the offence of driving under the influence.

72 The appeal will be allowed and a total sentence of 7 months imprisonment substituted for the total sentence imposed by the Magistrate. I further order that the term is to be suspended for 12 months conditional on compliance with a programme requirement and a supervision requirement.