LYON -v- READ [2012] WASC 96 (21 March 2012)

3 By an appeal notice dated 21 June 2011 and filed on 23 June 2011, the appellant sought leave to appeal against these sentences on four specified grounds and also sought an extension of time to institute that appeal. By orders dated 8 July but made on 7 July 2011, Commissioner Sleight extended the time for the commencement of the appeal as sought, granted leave to the appellant to amend his second proposed ground of appeal and directed that the application for leave to appeal should be heard at the same time as the appeal. Other orders and directions relating to the preparation and listing of the application/appeal were also made. In accordance with those directions, the appellant subsequently filed an amended set of his proposed grounds of appeal.

1. The total effective sentence of 12 months' imprisonment offended the totality principle and was manifestly excessive in regard to the offending conduct viewed as a whole, with insufficient regard given to the personal circumstances of the Appellant.

(a) Insufficient weight was attached to the mitigatory factors personal to the Appellant.

(b) The sentences of imprisonment for both offences were ordered to be served entirely cumulatively with each other.

(c) The total effective sentence was disproportionate to the sentencing standards for offences of driving a motor vehicle whilst suspended.

1. The learned magistrate erred in imposing a sentence of immediate imprisonment for the offences of driving a motor vehicle whilst under suspension at Pemberton on 6 February 2011 and at Dalyellup on 21 February 2011. The circumstances of the offences were not such that imprisonment was required.

(a) The circumstances of the offending.

(b) The mitigatory factors personal to the Appellant.

(c) The offence committed at Dalyellup on 21 February 2011 was a technical offence, with the Appellant steering his car down a sloping road to a friend's house, with the engine not running. The Appellant was moving the car to a friend's house so he wouldn't be tempted to drive the vehicle.

(d) The learned magistrate accepted this to be the case, stating this offence was at the lower end of the scale. The learned magistrate sentenced the appellant to 6 months' imprisonment, being the same sentence imposed for the Appellant's offence of driving a motor vehicle whilst subject to suspension at Pemberton on 6 February 2011. A longer period of cumulative licence disqualification was imposed (15 months) than was imposed for the Pemberton offence (12 months).

(e) The learned magistrate erred by considering the offence committed on 21 February at Dalyellup aggravated the criminality of the appellant's conduct.

1. The learned magistrate in sentencing the Appellant erred by not discounting the sentences imposed to take into account the Appellant's early pleas of guilty.
2. The 15month licence disqualification imposed by the learned magistrate for the offence of driving a motor vehicle whilst suspended, committed on 21 February 2011 at Dalyellup, was manifestly excessive:

(a) The technical nature of the offence.

(b) The circumstances in which the offence was committed.

5 By application dated 22 June 2011 and filed on 23 June 2011, the appellant also applied for bail pending the hearing and determination of the appeal on specified terms and conditions. That application for bail was also granted by Commissioner Sleight on 7 July 2011. The appellant was thereafter released to bail and has remained on bail pending the determination of the appeal. This means that he has been in prison serving part of the sentences from 16 May to 7 July 2011, a total period of 7 weeks and 4 days.

6 The application for leave to appeal and the appeal came on for hearing on 2 November 2011. In the course of the hearing the appellant sought liberty to file a further report or reports upon his son's medical condition and his family circumstances. He was granted leave to do so within seven days subject to disclosing the reports to the respondents, who were then granted liberty to file supplementary submissions dealing with the admissibility of any such further material and/or making further submissions with respect to it. The appellant did file further reports and subsequent written submissions upon them have been filed by the respondents. The details of those developments will be described and considered later.

7 The appellant has a long record of prior convictions for various traffic offences and other summary offences. This record includes eight prior convictions for driving a motor vehicle whilst under suspension, covering the period from 14 December 2002 until 23 April 2007. For the earlier offences, he was fined and had his licence disqualified for further periods. For three such convictions recorded in the Bunbury Magistrates Court on 27 July 2006 for driving whilst under suspension on three different dates from 23 April 2006 to 13 May 2006 he received sentences of imprisonment of 4 months, 5 months and 6 months respectively, resulting in a cumulative period of imprisonment of 15 months but each of which was suspended.

8 For a subsequent offence of driving whilst under suspension on 11 February 2007, he was sentenced in the Bunbury Magistrates Court to a term of imprisonment of 9 months. That was the last conviction for driving whilst under suspension until these two convictions, so a period of nearly four years (February 2007 until February 2011) passed before he reoffended by again driving whilst under suspension. However, in the meantime Mr Lyon had been convicted of a series of other offences, including offences for dishonesty, and had been sentenced to another period of 4 months' imprisonment, which he served. He was, therefore, at the time of conviction and sentence for these offences, a significant repeat offender who had earlier received sentences of suspended imprisonment and later immediate imprisonment for similar offences. Accordingly, while the appellant was, at the date of sentencing, only aged 24 years and some seven months, he has accumulated an alarming number of prior convictions.

9 Pursuant to the leave granted at this hearing, a further affidavit by the appellant's counsel sworn 11 November 2011 and annexing a quantity of medical and related reports dealing with the appellant's children's special circumstances was filed. Following that, further written submissions were received by counsel for the respondents and for the appellant dealing with whether or not that material could or should be admitted and, if so, what use could be made of it. It will be necessary to advert to these supplementary materials later.

10 A fuller picture of the circumstances surrounding the commission of the two offences for which the appellant was sentenced was set out by the appellant in his written submissions and was not challenged by the respondents. On Sunday, 6 February 2011, the appellant, his de facto partner and three children aged seven and four-year-old twins, were driven by the appellant's partner's sister to Northcliffe to deliver a motorbike which was to be final payment in regard to the appellant's purchase of a Holden VM Commodore. It had been arranged that the owner of the Commodore would, upon receiving the appellant's motorbike, drive the Commodore to the appellant's residential address at Dalyellup. The owner of the Commodore upon receiving the appellant's motorbike informed the appellant that he was unable to drive the Commodore to the appellant's residential address in Dalyellup as he had received a telephone call informing him that he had to attend at the airport as a flyin/flyout worker the next day. Despite making numerous telephone calls, the appellant was unable to arrange for a licensed driver to drive his newly purchased Commodore from Northcliffe to his residence at Dalyellup. The Commodore was purchased to enable the appellant's de facto partner, Jodie, to have a motor vehicle to drive when she obtained a driver's licence. Jodie had never held a driver's licence and did not have the necessary experience to drive a car from Northcliffe to Dalyellup. In these circumstances, the appellant drove the car from Northcliffe to Dalyellup, when he was pulled over and charged by police at Pemberton. For that offence of driving under suspension, he was sentenced to 6 months' imprisonment and his driver's licence was disqualified for cumulative period of 12 months.

11 The second offence occurred a little over a fortnight later. The Commodore sedan which had been purchased in Northcliffe was being used by the appellant's de facto partner, Jodie, for driving lessons in a public carpark area in Washington Avenue, Bunbury. The appellant was the passenger in the vehicle, evidently encouraging Jodie with her efforts to obtain driving experience. Regrettably, she had not obtained a learner's permit. After driving in and around the carpark area, Jodie was driving the vehicle to the family home in Dalyellup when pulled over by the police. She was thereupon charged with driving a vehicle without a valid driver's licence.

12 As a result, the vehicle remained on the side of the road and the police officers who had stopped the car took Jodie and the appellant to one of Jodie's sisters' house in Brand Avenue, Bunbury. From there, the appellant telephoned a friend and arranged for the friend to collect the car from where it had been left and to drive it to the front of the block of units where the appellant's friend lived. On returning to their home at Dalyellup, the appellant became concerned that his vehicle might be damaged by a person who lived in the same block of units where the vehicle was parked and who had a history of hostility towards the appellant. With this concern in mind, the appellant walked from his home in Dalyellup to the block of units where the vehicle was parked. Without starting the engine, the appellant sat in the driver's seat and rolled the car approximately 100 m down the hill to another friend's house in order to remove it from the danger posed by the third person. When doing this he was stopped by the police and charged with another offence of driving under suspension. It was for this further offence that he was sentenced to 6 months' imprisonment to be served cumulatively upon the first period of 6 months' imprisonment imposed for the offence committed on 6 February 2011. For this later offence he was further disqualified for a cumulative period of 15 months.

13 Furthermore, counsel for the appellant at the sentencing hearing put to the learned magistrate that the appellant was fulfilling an important and vital role in the care of his partner and three infant children. The partner, who, as I have already mentioned, did not herself have a motor driver's licence, was unable to take the children to school and the appellant took them by bicycle to school each morning a lengthy distance. One of the children, the appellant's son Zach, then aged four and a half years, had been registered with the Disability Services Commission due to a diagnosis of global developmental delay. He required extra support in his daytoday interactions and learnings. He attended the Maidens Park (Withers) Primary School where he underwent a special program. The local Disability Services Commission area coordinator, in a reference which was offered to the court, wrote that Zach was part of a busy family environment and that his needs placed extra challenges on his parents and that the best support for Zach and his two siblings would be for both parents to be able to continue supporting the children and each other in that supportive role. The area coordinator said that he knew that the appellant played a vital role in assisting this young boy and his twin brother and their sister to make the journey two and from school each day.

14 In addition to the special problems arising from the need for support and transport for the child Zach, the appellant's partner had problems with her mobility and was expecting to undergo knee surgery in the months to come after the appellant's court appearance. This was expected to place ever greater importance on the role that the appellant undertook in assisting the family and taking the children to school each day. Other references to similar effect were forthcoming from the appellant's partner and her mother, who is also disabled and partly cared for by the appellant.

15 More details of the appellant's background and circumstances appear from the initial affidavit of the appellant sworn 21 June 2011 in support of the application for leave to appeal and the appeal, which was read without objection. During the course of the hearing of this application/appeal counsel for the appellant made further reference to what were submitted to be special and exceptional circumstances arising from the appellant's need to care for his children and his partner which, so it was submitted, raised special conditions of hardship which were relevant to the question of whether or not sentences of immediate imprisonment should be imposed.

16 The prescribed penalty for driving under suspension, other than for a first offence, is a fine of not less than $1,000 or more than $4,000 and imprisonment for not more than 18 months. The offender must also 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: Road Traffic Act 1974 (WA), s 49(1)(c)(ii) read with s 5(1)(a).

17 When sentencing the appellant the learned magistrate, after attending to the basic background information, said:

You are before the court with a record which - I think on my calculation I said you had seven previous convictions, but in fact it's actually eight, although for sentencing purposes, three of those matters were dealt with on the one date. You've had the benefit of a suspended imprisonment order in the past and it would seem that you were dealt with for a breach of that order in January 2009 in this court and you were sentenced to a term of imprisonment arising from that breach. The circumstances of the offences today, there's nothing in regard to what I've heard which is either aggravating or to really any extent mitigating, although the second offence was perhaps at the lower end of the scale of driving under suspension.

Your record also indicates that it has been four years since your last conviction for driving under suspension, and it's two years or just over since your last conviction for any offence. So that perhaps goes to your credit in determining what I'm going to do with you in relation to these offences. Of course you have pleaded guilty as well.

18 There was then a submission from counsel to stress the special features of the second offence, after which her Honour went on:

I've been told about your personal situation with your family and also the fact that your partner is due to undergo surgery in the near future. I'm told that she is going to be in a wheelchair - - -

- - - for a period of time after that surgery, although there's nothing from a medical person to confirm that that is the case, but I will accept that that is the likely outcome as far as recovery is concerned. I accept that you are significantly involved in the care of your children and it is perhaps surprising to me, Mr Lyon, that being involved as you are with the care of your children, you nevertheless take the risks that you have taken in driving your vehicle on these two occasions, because in the past you know that you can be sentenced to a term of imprisonment for these offences and you've had, as I've said, the benefit of a suspended term in the past, but you breached that term and accordingly have served that term of imprisonment by way of the breach.

Notwithstanding all of that, you drive again and as I've said, although the second one is at the lower end of the scale, you nevertheless were in control of the vehicle.

The first occasion on 6 February, and there is absolutely no excuse for that one.

So the question is whether - or certainly there's no question so far as I'm concerned that a term of imprisonment is warranted in regard to both matters. The question is whether or not that ought to be suspended. When I look at your record, the circumstances of your attending and your personal and family issues afresh in regard to that question, I'm not persuaded that those family issues are such that would persuade me that it ought to be a suspended term, so accordingly, the term that I impose will be an immediate term of imprisonment.

So for each of the two driving under suspension, you are sentenced to a term of six months' imprisonment cumulative on each other, making a total of 12 months' imprisonment. However I do note that you are to be eligible for parole. Whether you're afforded parole will be up to the Prisoner Review Board. Thank you. You're disqualified for 12 months cumulative on your first conviction and 15 months on the second conviction ...

19 By virtue of s 9(1) and (2) of the Criminal Appeals Act 2004 (WA) the leave of the court is required for each proposed ground of appeal. Leave to appeal must not be granted in relation to a ground unless it has a reasonable prospect of succeeding. This means that 'a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success': Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].

20 On the present application the respondents concede that leave to appeal on grounds 1 and 4 ought to be granted but submitted that there are no reasonable prospects of success for the proposed grounds 2 and 3 and that consequently, leave to appeal in respect of them should be refused. As already set out, the proposed ground 2 contends that an immediate sentence of imprisonment for driving whilst under suspension on both occasions should not have been imposed; and the proposed ground 3 contends that the learned magistrate erred by not discounting the sentences imposed to take into account the appellant's early pleas of guilty. For reasons which follow I am satisfied that each of the proposed grounds of appeal, including grounds 2 and 3, is reasonably arguable and has a rational and logical prospect of success sufficient to allow leave to appeal to be granted. I shall therefore, grant leave to appeal in respect of each of the four proposed grounds of appeal.

21 In every sentencing case the principles of the sentencing contained in s 6 of the Sentencing Act 1995 (WA) must be observed, namely that a sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community requires it. The Act provides that the seriousness of the offence is to be determined by taking into account the statutory penalty, the circumstances of the commission of the offence and any aggravating or mitigating factors.

22 It is well established that an appellate court is not entitled to intervene in an appeal against sentence merely because it would have exercised the sentencing discretion differently than the sentencing judicial officer. Nevertheless, an error in the exercise of the sentencing discretion may be established by inference if the result is unreasonable or unjust or the sentence is manifestly excessive: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 672; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325. In any sentencing appeal an appellate court may intervene if it is apparent that the court below acted upon a wrong principle or took into account extraneous or irrelevant matters or was mistaken about the facts or did not take relevant matters into account: Dinsdale (324, 339 340).

23 An appellate court must fully recognise the discretionary character of the sentencing function and must accord to the sentencing judge a wide measure of latitude: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 337 (Kirby J). Particularly with reference to the proposed ground of appeal that no discount be allowed for the pleas of guilty, counsel for the respondents submitted that a failure by a decisionmaker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. The respondents' submitted that a beneficial construction should be given to a magistrate's ex tempore statement of reasons and that it should be assumed that the magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Brewer v Bayens [2002] WASCA 37 [31]; Scanlon v Bove [2008] WASC 213 [11]. Nevertheless, where an error in the exercise of a sentencing discretion cannot be precisely identified but the sentences nevertheless are unreasonable or plainly unjust, the appellate court may infer that the sentencing discretion has miscarried: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

24 As observed by Malcolm CJ in Chan v The Queen (1989) 38 A Crim R 337, 342 when determining whether a sentence is excessive, the appellate court must view it in the context of the maximum sentence prescribed for the crime, the standards of sentencing customarily observed with respect to the crime, the place where the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

Sentencing principles for driving under suspension

25 As I observed in Gable v Nardini [2010] WASC 321 [33] the penalties provided for driving under suspension are designed both to be punitive and to secure public safety on the roads. Driving whilst under suspension is a particularly serious offence, especially when committed in circumstances which suggest a wilful defiance of the law: Griekspoor v Scott [2000] WASCA 419, (2000) 23 WAR 530; 550 [72]; Donnachy v Riegert [2004] WASCA 48 [120]; Arcari v Christie [2007] WASC 298 [20]; and Yuksel v Marchesani [2011] WASC 57 [29]. An extensive examination of previous sentencing decisions for the offence of driving under suspension was conducted by McKechnie J in Sheiner v Roberts [2009] WASC 281 and again in Rossister v Francisty [2005] WASC 270. A further review of these and other cases can be found in my reasons for decision in Gable v Nardini.

26 However, counsel for the respondents submits, and I accept correctly, that any comparative analysis of sentencing standards emerging from other cases or based on tables should be conducted with care and restraint because there is a risk of inadequately identifying the circumstances in which the particular offences were committed and the relevant personal features of each offender. Accordingly it is not possible to approach sentencing, whether at first instance or an appeal, on the basis of any precise arithmetical assessment based on the number of offences committed or previously committed by the offender. It will always be a matter for discretion to determine whether or not a particular sentence falls within an appropriate range: Bell v Wesley [2007] WASC 264 [37] [41].

27 It was with these considerations in mind that I observed in Gable v Nardini [34] that it was typical for convictions for driving whilst under suspension for the fourth, sixth, seventh or eighth such offence to result in terms of imprisonment fixed at between 4 and 9 months with eligibility for parole a view endorsed and repeated in Yuksel v Marchesani and in Sheiner v Roberts. Again in Palmer v Dwyer [2010] WASC 28 [35] I observed that 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 similar prior offending, shows that sentences aggregating in the region of 10 12 months' imprisonment are commonly imposed and seldom exceeded although there are occasions when longer sentences are imposed.

28 At this point some general observations about the totality principle are also relevant. As counsel for the respondents submitted the first limb of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirely and having regard to all relevant circumstances including those referrable to the offender personally: Magar v The State of Western Australia [2011] WASCA 122 [65]; Birch v The State of Western Australia [2011] WASCA 101 [30] [33]; and Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [65]. This submission is addressed to the contention advanced on behalf of the appellant that a cumulative period of 12 months immediate imprisonment for these two offences was, in all the circumstances, excessive and a breach of the totality principle.

29 In this appeal the respondents submit that the sentence of 6 months' imprisonment for the first offence was well within the appropriate range in regard to the particular circumstances of the commission of that offence but that the total effective sentence of 12 months' imprisonment is at the higher end of the total sentences imposed for multiple offending in the context of a history of similar prior offending. Consequently counsel for the respondents conceded that whilst there is certainly a long history of similar prior offending by this appellant this total sentence appears not to reflect the criminality of the offending as required by the totality principle especially where the learned magistrate acknowledged that the second offence was 'at the lower end of the scale'. For that reason the respondents accept that it would be appropriate for this court to resentence the appellant in respect of the second offence.

30 With that introduction it is appropriate now to turn to the four grounds of appeal in sequence.

Ground 1: 12 month's immediate imprisonment was manifestly excessive and offended the totality principle.

31 The submissions for the appellant are that the total effective sentence of 12 months' imprisonment failed adequately to take into account the first limb of the totality principle. It was submitted that this sentence failed to bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety having regard to the circumstances of the case and those referable to the offender. The submission proceeded to advance the contention that her Honour did not sufficiently consider whether the aggregate term of imprisonment reflected the overall criminality involved and erred by not taking a last look at the total effective sentence which was imposed. So far as mitigatory factors personal to the appellant were concerned, the submission was that the aggregate sentence imposed did not sufficiently take into account the appellant's efforts to transport his children to school, the need for special care for his 4yearold son with global development delay, and the fact that his partner was likely to be incapacitated because of knee surgery.

32 There had been some evidence before her Honour from the Local Disability Services Commission about the effect which imprisonment would have upon the appellant's partner and her children.

33 However, as already observed the sentence of imprisonment of 6 months for the first offence was well within the range of sentences commonly imposed for this offence upon a frequent prior offender in the absence of exceptional circumstances of hardship likely to be caused to others among the immediate family. Whether this is really a case where exceptional circumstances call for a more moderate approach is an issue which I shall leave for the moment until after consideration has been given to the further evidence presented in support of the appeal.

34 It must be said, however, that in committing the first offence by driving the newly purchased car from Northcliffe back to Dalyellup before being intercepted at Pemberton, did not involve any great danger to the public or to the passengers in the vehicle. The entire episode showed extremely poor planning. However, once the appellant and his family found themselves potentially stranded at Northcliffe, with no lawful means of getting back Dalyellup, one can regard the appellant's conduct, while still very serious, as having been committed in somewhat extenuating circumstances. I would be inclined to classify the severity of this particular offence as being in the middle or lower order of this kind of offence having regard to all the circumstances. The most alarming feature of it was that it was the ninth time that the appellant had driven whilst under suspension. Although it must be noted that a period of about four years had passed since his previous like offence.

35 As to the second of these offences committed on 21 February 2011 when the appellant drove while under suspension by sitting in control of his car while he allowed it to roll down the hill, that must, on any view, be regarded as being at the lower end of severity of this kind of offence. Noone else was in the car. There was no suggestion of dangerous or careless driving. The journey was for an extremely short distance and again, while the conduct may have been foolish in the extreme, it was not entirely thoughtless.

36 Having regard to the principles of totality and the seriousness of the particular conduct, I consider that there was an error in the sentencing discretion to impose a penalty for the second offence cumulative upon the first. By imposing this sentence and producing the total effective sentence of 12 months, the aggregate sentence upon the offender was at the very top end, if not slightly beyond, the range of sentences conventionally imposed for like repeat offences even for frequent offenders. I do not consider that the severity of the offence or the culpability of the offender warranted punishment on that scale. Accepting that a sentence of imprisonment for such an offence was appropriate, and that the offender had already been sentenced to 6 months' imprisonment for the first offence, I consider that the second sentence should have been shorter and should have been ordered to have been served concurrently. Four months for the second offence would be sufficient for the reasons set out later. I would uphold this ground of appeal to that extent.

37 This still leaves the question whether or not these two sentences of imprisonment, now to be served concurrently, should or should not have been suspended. As I have already remarked, that requires a consideration of whether or not there were exceptional circumstances of hardship affecting the appellant and his family and also whether or not adequate consideration was given by the learned magistrate to a suspended sentence. This is the topic of the second ground of appeal. I shall, therefore, defer further consideration of this aspect of the first ground until later.

Ground 2: Immediate imprisonment not appropriate

38 Counsel for the appellant stressed the imperative in s 6 of the Sentencing Act that imprisonment must not be imposed unless the court is satisfied that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Counsel relied upon the observations of Buss JA in Medan v The Queen [2011] WASCA 142 [78] where his Honour observed that:

It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence.

39 When sentencing the appellant the learned magistrate observed there was nothing which was either aggravating or mitigating in regard to either offence. However, her Honour appears to have treated the second offence committed on 21 February 2011 as having aggravated both offences because it had been committed so soon after the earlier offence. While referring to it as being 'perhaps at the lower end of the scale of driving under suspension' her Honour imposed the same length of imprisonment for the second offence as for the first and also imposed a longer period of disqualification. It was submitted that it was treated as an aggravated form of offending, whereas it should have been regarded, in its true perspective, as being an offence of less severity and culpability. Very little attention was given by the learned magistrate to the possibility of suspending either sentence or any composite sentence and so, the appellant submits, this was an erroneous approach to the exercise of the sentencing discretion.

40 A suspended sentence of imprisonment is always open and it is only if it is decided that it is not appropriate to impose such a suspended sentence, that a court may impose an immediate term of imprisonment: Sentencing Act s 39(3); Mason v Morrison [2004] WASCA 181 [18]; and Gable v Nardini [26], [41]. On the other hand, the respondents have submitted that in view of the appellant's past criminal history and in particular, his previous breach of the terms of a suspended sentence for the same offence, the imposition of immediate sentences of imprisonment in respect of both offences was within the sentencing discretion of the learned magistrate, notwithstanding the personal circumstances of the offender: Anderson v Heath [2005] WASC 253 [36] [42] (Le Miere J). Counsel for the respondents also draws on the observations of McKechnie J in Sheiner v Roberts [17] where his Honour said:

[I]t is an unusual case that repeated offences of driving under suspension will attract anything other than a sentence of imprisonment to be immediately served. This is not and should not be seen as a statement of principle but as an observation of sentencing patterns.

41 In these circumstances, I consider that it was well within the normal pattern of sentencing for repeat offences of driving whilst under suspension, for sentences of imprisonment to be imposed on this appellant and to be ordered to be served immediately although, as I have already concluded, I consider that in this case both sentences should have been concurrent. In ordinary circumstances, having regard to this offender's record and his prior poor response when sentenced to a term of suspended imprisonment, I consider that immediate terms of imprisonment could not be described to be wrong or to connote otherwise any error in the exercise of a sentencing discretion. In making that observation I stress that the conclusion is based upon the ordinary course of events existing in the absence of special or exceptional circumstances because, as I have now already indicated, a major issue remains to be resolved in this case of whether or not there were exceptional personal circumstances which warranted a more restrained approach. By itself, however, I would not be disposed to allow this second ground of appeal but its potential combination with other grounds remains to be more fully examined.

42 Her Honour acknowledged that the appellant had entered pleas of guilty but did not in any express way discount the sentences imposed to take account of those early pleas. Section 8(2) and s 8(4) of the Sentencing Act require a court to take a plea of guilty into account as a mitigating factor and to state that a sentence has been reduced as a result of that mitigating factor. The only mention which her Honour made of this feature of the case appears at page 7 of the transcript where her Honour said:

Your record also indicates that it has been four years since your last conviction for driving under suspension, and it's 2 years or just over since your last conviction for any offence. So that perhaps goes to your credit in determining what I'm going to do with you in relation to these offences. Of course, you have pleaded guilty as well.

43 Counsel for the respondents has acknowledged that this did not constitute strict compliance with s 8(4) because there was no express statement that the pleas of guilty were taken into account as a mitigating factor or that the sentences would be reduced on that account. Nevertheless, counsel for the respondents submitted that a beneficial construction should be given to these reasons for decision, having regard to their ex tempore nature and that there is at least an implied acknowledgment that the pleas of guilty were mitigating factors.

44 Counsel for the appellant, relying upon Dixon v Scott [2002] WASCA 280 [34] [38], submits that an early plea of guilty usually attracts a 25% discount and that if a sentence is reduced for this cause the court must specifically state that the sentence imposed was reduced to take that mitigating factor into account: Messiha v Royce [2004] WASCA 290 [13] [14]. It was submitted that the learned magistrate erred by not discounting the sentences imposed to reflect the appellant's early guilty pleas and the fact that they indicated an acceptance of responsibility and contrition or remorse: Main v The State of Western Australia [2010] WASCA 28 [18] [22]; and McDonald v White [2007] WASCA 213 [26] [32]. However, counsel for the respondents points out the result observed in Main v The State of Western Australia [21] that a contravention of s 8 of the Sentencing Act does not necessarily invalidate a sentence where there is no doubt that the mitigating factors were taken into account and that in this case there is a necessary inference that they were taken into account as a mitigating factor.

45 In my view, having regard to the pattern of sentencing for this offence for repeat offenders as already examined, one should infer that the sentence of 6 months' imprisonment for the first offence did take into account factors of mitigation, including the plea of guilty, which probably led to a reduction of the sentence of imprisonment from about 8 or 9 months to 6 months. However, I do not consider that a similar conclusion can be drawn in relation to the 6 months' imprisonment imposed for the second offence because, having regard to the less serious circumstances surrounding its commission, I am inclined to the view that a proper starting point would have been 6 months' imprisonment which should, in turn, have been reduced to 4 months' imprisonment because of the plea of guilty and the other moderating circumstances of its commission. Again, however, I consider that the shorter period of imprisonment for the second offence should have been ordered to have been served concurrently with the first sentence of imprisonment if neither was to be suspended.

46 Accordingly, although it may produce no difference in the practical outcome, in view of my conclusions of other grounds of appeal, I would allow this third ground of appeal and direct that the second period of imprisonment should be reduced to 4 months but, for reasons previously given, be served concurrently with the first if neither were to be suspended. The question of suspension or otherwise of both sentences still remains to be considered.

Ground 4: Excessive period of disqualification for the offence committed on 21 February 2011

47 The appellant contends that the 15month licence disqualification imposed by the learned magistrate for the offence of driving a motor vehicle whilst suspended, committed on 21 February 2011 at Dalyellup was manifestly excessive having regard to the 'technical nature' of the offence and the circumstances in which it was committed.

48 No separate written submissions by the appellant were advanced in relation to this ground but counsel did rely upon the earlier submissions made in relation to the term of imprisonment of 6 months imposed by her Honour to support the submission that the second offence was less severe or less culpable having regard to all the circumstances, and did not warrant a longer period of disqualification than imposed for the first. In this respect the submissions are supported by counsel for the respondents who has formally conceded that the imposition of a 15month suspension in relation to this offence was manifestly excessive. Counsel for the respondents accept that it would be appropriate for this court to resentence the appellant in respect of the second offence to a shorter period of suspension. The minimum period of suspension for such a repeat offence is, as earlier stated, not less than 9 months: Road Traffic Act, s 49(1)(c)(ii).

49 In these circumstances I would uphold this fourth ground of appeal and reduce the period of suspension of 15 months imposed for the second conviction to a period of 9 months. I also consider that the normal position that this should be concurrent with the earlier suspension should apply Sentencing Act s 105(2).

Should the sentences of imprisonment have been suspended?

50 The submission for the appellant is that in declining to suspend the sentences of imprisonment imposed, her Honour did not appropriately evaluate the overall circumstances of the case and, in particular, did not sufficiently consider the circumstances of the second offence committed on 21 February 2011. In particular, counsel for the appellant submitted that the learned magistrate did not sufficiently take into account the appellant's efforts to transport his three young children to and from school and the problems which the children would experience in attending school in his absence (due to his partner not having a driver's licence and having a significant knee problem which required imminent surgery). Counsel for the appellant drew attention to the observations of Buss JA in Hobby v The State of Western Australia [2011] WASCA 197 [26] where his Honour observed:

The factors to be considered when deciding whether or not to suspend a term of imprisonment include:

(a) the perceived seriousness and intrinsic character of the offence;

(b) whether there was any element of persistence;

(c) general deterrence;

(d) factors personal to the offender including mitigating circumstances;

(e) the need to demonstrate the community's condemnation of offences of the kind in question;

(f) the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and

(g) any reasons militating in favour of an exercise of mercy.

This list of factors is not, of course, exhaustive. See R v Liddington (1997) 18 WAR 394, 406 (Steytler J).

51 In drawing attention to the potential hardship which would be visited upon the appellant's family, and in particular his young children, if he were to be imprisoned, counsel for the appellant referred to 'S' v The Queen [2003] WASCA 309 which was an appeal against a 2 year sentence of imprisonment for attempting to pervert the course of justice. The appellant in that case was the mother of an intellectually disabled child aged 7 years who required the support of both parents. In a judgment with which McKechnie J and Wallwork AJ both agreed when allowing the appeal, Miller J concluded that the period of imprisonment imposed at first instance should have been suspended stating:

Generally speaking, hardship caused to the child of an offender is not a circumstance to be taken into account in the sentencing process. However, when the degree of hardship is exceptional if the parents of a child or a parent of the child is imprisoned, different considerations apply. In R v Stewart (1994) 72 A Crim R 17, Franklyn J (at 21), put it this way:

'Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends on the gravity of the offence and the circumstances of the case.' [21]

I would like to add that the questions of whether a person deserves to be imprisoned for a serious offence and the effects of a possible sentence of imprisonment on the offender's 'family or dependants', for example young children, involve quite different considerations. Children in Australia are entitled to proper protection whatever that requires: ... It can be a serious derogation of a child's rights to order a particular offender go to prison [38].

53 Counsel for the appellant also submitted that, bearing in mind the circumstances of the offending and the fact that the appellant had not committed a comparable offence since 2007, the learned magistrate, in imposing an immediate term of imprisonment, did not sufficiently consider the prospects of rehabilitation, the personal deterrence provided by the threat of activation of a suspended sentence and the effect of imprisonment upon the appellant's developmentally delayed 4yearold son.

54 In answer to these submissions counsel for the respondents submitted that the general principle is that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of the prisoner's family (Boyle v The Queen (1987) 34 A Crim R 202, 204 205 (Burt CJ)) and that only in an exceptional case should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed substantially to mitigate the court's sentencing disposition: Hodder v The Queen (1995) 15 WAR 264, 287 (Murray J dissenting); and Shooter v The Queen (1997) 97 A Crim R 581, 596 597 (Ipp J, Steytler J agreeing).

55 Counsel for the respondents referred to the learned magistrate's remarks to show that personal and family issues in the course of sentencing were recognised. The observation of her Honour in this respect was at ts 8 when her Honour said:

When I look at your record, the circumstances of your offending and your personal and family issues afresh in regard to that question [whether a term of imprisonment is warranted] I am not persuaded that those family issues are such that would persuade me that it ought to be a suspended term. So, accordingly, the term that I impose will be an immediate term of imprisonment.

56 These were not, of course, all the considerations which were pertinent to the question of whether or not any sentence of imprisonment should be suspended as they do not include all the factors referred to by Buss J as earlier listed in Hobby (supra).

57 On the basis of the materials produced at the hearing of this application/appeal (that is before the supplementary materials were presented) the submissions for the respondents were that the appellant's personal circumstances do not constitute an exceptional case which would warrant substantial mitigation in the sentences imposed. Counsel repeated the submission that the sentences imposed should primarily reflect the seriousness of the offences and that the effect of the appellant's long record of previous similar offending meant that the appropriate sentences for the offence should not be substantially reduced by mitigating circumstances associated with his personal character or circumstances and, significantly, that the failure of the last penalty to act as a deterrent should offset other mitigating factors: Griekspoor v Scott (549 550) [71] (RobertsSmith J).

58 The supplementary materials contained in the affidavit of the appellant's solicitor sworn 11 November 2011 and filed after the hearing of the appeal by leave have already been generally described. The evidence relates to the state of health and wellbeing of one of the appellant's twin sons, Zach, and that of his partner, Jodie. It includes a more recent letter from the Director General of the Disability Services Commission dated 7 November 2011 which described Zach's eligibility for Disability Services Commission services and his access to a special school programme to attend kindergarten. It confirmed that meetings of the local area coordinator for the Disability Services Commission with the appellant's family identified that the appellant undertook the roles of transporting the children to school, participating in therapy programmes and supporting his partner in relation to her own health issues and in implementing the child therapy programmes. It included an observation that 'the imprisonment of Mr Lyon would have a significant impact on the family unit and on Zach'.

59 Also included in these materials was a report from the school principal at the Withers Primary School where the young boys were enrolled at kindergarten. That confirmed that Zach suffers from global development delay, receives assistance from a teacher assistant one day per week and that the appellant regularly liaised with the teacher and the teacher assistant.

60 Also enclosed in the materials is a letter from the attending medical practitioner for the appellant's partner, Jodie, the mother of Zach and the other children. In this letter the partner is described as suffering from longstanding anxiety and depression which is at times quite disabling. Her therapeutic medication had to be stopped because of pregnancy putting her at a high risk of deterioration in her mental health and psychological state. She also recently underwent surgery for the repair of a knee. This doctor reported that the partner desperately needs the support of the husband at this time, especially because she is not on her anxiety medication, has a physical limitation with one knee, is having a high risk pregnancy and has to look after the disabled child. According to this doctor, Zach was born as a preterm and has cerebral palsy - although that diagnosis is not mentioned by the Disability Services Commission. A paediatrician has reported that Zach needs a carer for his development. The report of the attending medical practitioner concludes by saying that the imprisonment of the appellant would have a very negative impact on the welfare and health of the family, especially at a time when Jodie needs full support, and that the strain of such an experience, coupled with the need to care for Zach, his twin brother and his older sister may lead to Jodie breaking down.

61 Also included in these additional materials are extracts from hospital, psychological and Disability Services review documents confirming the provision of treatment programmes for Zach because of his global development delay, fine motor skill problems, speech problems and other issues dating from 2009 to the present.

62 The first question which arises is whether the court can or should consider these additional materials which were not before the learned magistrate. In the subsequent written submissions, counsel for the respondents did not oppose reliance upon these fresh materials, relying on s 40(1)(d) and (e) of the Criminal Appeals Act which respectively provide:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence

and also referring to s 41(4) of the Criminal Appeals Act which provides:

The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor)

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.

63 Section 14(5) of the Criminal Appeals Act also provides:

On an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.

64 In Nisbet v Fullarton (Unreported, WASC, Library No 930265, 14 May 1993) (Scott J), it was observed that on a sentencing appeal, where an appellant seeks to admit material that relates only to the appellant's circumstances and background, that material should be received.

65 Counsel for the respondents has alerted the court to a series of decisions bearing on the admissibility and use of such supplementary materials on sentencing appeals. These include McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428, 437 438 [43] which was a decision reached before the operation of the Criminal Appeals Act but which would appear no longer to apply in view of the observations of McKechnie J in JJA v Yow [2008] WASC 69 [3] [5]. The power to receive such evidence was confirmed in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539, 544 [19] [20], 545 546 [27] [28]. Those decisions were given at a time when s 31(2) of the Criminal Appeals Act which dealt with the Court of Appeal's consideration of matters occurring after conviction remained in force. That subsection was repealed in 2008 but the repealed subsection has an equivalent statutory provision in relation to the Supreme Court contained in s 14(5) of the Criminal Appeals Act which continues in force. There has been a spate of more recent single judge decisions on the issue, the latest of which appears to be Riley v Smirk [2011] WASC 21 [36] [53] (Simmonds J).

66 The most recent decision of the Court of Appeal in the area is The State of Western Australia v Hyder [2011] WASCA 256 where McLure P observed [25]:

Generally, an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) of the Criminal Appeals Act 2004 (WA) (the Act). However, it has a broad power to admit other evidence under s 40(1)(e) of the Act: Wheeler v The Queen [No 2] [2010] WASCA 105 [52] (Owen JA). The general test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler [3], [53].

Buss JA and Mazza J agreed with the learned President's reasons in this respect.

67 Accordingly, I consider that the more recent evidence concerning the special circumstances of the family, particularly the health and susceptibilities of Zach and Jodie, are such that this evidence is relevant to the question of whether or not exceptional circumstances exist which may lead to special mitigation being recognised and that, had the nature and extent of this evidence been before the learned sentencing magistrate, it is at the very least probable that it would have been considered and, if considered, would have merited serious attention being given to whether a different sentence should have been imposed. That exercise was not undertaken. For an adequate discharge of the responsibilities of this court on this sentencing appeal I am satisfied that it must now be undertaken, even if there were no other reasons to reconsider the sentences.

68 As matters stand so far, a consideration of these grounds of appeal has led to the need for the appellant to be resentenced in relation to the second conviction and for the order of cumulation of sentences imposed in the Magistrates Court to be set aside in favour of an order for concurrency, this still leaving open the question of whether or not the sentences should be suspended. Because resentencing of this scope is necessary, I consider that it is proper and necessary for the court to take into account this additional evidence under s 40(1)(e) and s 41(4) of the Criminal Appeals Act. I shall, therefore, admit this additional evidence and proceed to deal with its significance.

69 The question whether hardship to an offender's family may be used to mitigate substantially a sentence for an offender was also considered by the Court of Appeal in The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 and in Hull v The State of Western Australia [2005] WASCA 194; (2005) 156 A Crim R 414. In this regard reference has already been made to 'S' v The Queen. In Wynne's case, Miller JA, with whom Steytler P and Murray AJA agreed, set out the relevant principles at [81] [82] by reference to the decision in Stewart v The Queen (1994) 72 A Crim R 17 and said:

The guiding principle is that ordinarily, hardship caused to an offender's children will not be a circumstance that is taken into account in the sentencing process. It may be taken into account when the degree of hardship that imprisonment would involve is exceptional, or where the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In most cases, however, it depends on the gravity of the offence and the circumstances of the case (Stewart at 21 per Franklyn J).

Thus, in [S v The Queen] the court 'drew back in mercy' and imposed a suspended term of imprisonment in circumstances in which a severely disadvantaged child of the appellant and her partner might otherwise be deprived of the care of both parents and such disruption of dual parental care would be a very substantial detriment to the child and even put him back to a level from which he might never recover (at [17] and [30]). On the other hand, in R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286, the respondent was considered by the Court of Criminal Appeal of New South Wales to have been sentenced too leniently when given a suspended sentence because she had a 4yearold child who suffered from severe behavioural and emotional problems and separation of the child from the mother would be likely to cause trauma to the child and result in escalation of her distress and behavioural and emotional problems. The court considered that there had to be some form of actual imprisonment imposed upon the respondent, who was a customer service operator in Centrelink and over the period of nine months had defrauded the Commonwealth to the extent of $78,500 (at [25]).

70 These considerations led counsel for the respondents to submit that the evidence of the hardship upon Zach alone which could be expected to result from the appellant's immediate imprisonment was insufficient to amount to exceptional circumstances within the test recognised by these decisions. Nevertheless, counsel for the respondents very properly submitted that in light of the evidence of the medical practitioner responsible for the care of the appellant's partner, Jodie, about the likely consequences to Jodie, demonstrated a greater hardship upon the appellant's partner than had been apparent before the learned sentencing magistrate. Counsel left open the question of whether or not this warranted a finding of exceptional circumstances, that being an issue for decision by this court. It was acknowledged that the potentially serious adverse effects upon the appellant's partner, and hence for all the children, if the appellant were to be imprisoned were not put before the Magistrates Court, and therefore not considered by her Honour.

71 It is to the significance of these factors which I must now return.

72 Sufficient emerges from the circumstances leading to the commission of these offences to show that the appellant's family suffers from many disadvantages and handicaps. They have not adapted well to the special demands and difficulties which they face. The decision to drive back with the family from Northcliffe to Dalyellup after purchasing the Commodore sedan on 6 February 2011 smacks of poor organisation resulting in a situation which produced quite major practical difficulties for the immediate welfare of the family. The conduct of attempting to train the appellant's partner in driving instruction, when she did not have a learner's permit, shows similar lack of responsibility and planning although this too was probably prompted by a misguided sense of necessity. The decision to get into the vehicle and allow it to freewheel down the hill to reduce the risk of damage by a malicious third person shows even more problems in relevant adaptive behaviour.

73 Whichever way one views the family situation and dynamic it is evident that the structure of the appellant's family and the dependence of the three children for care, education, support and special needs are very fragile. A letter from the appellant's employer, tendered without objection as an exhibit at the hearing of this appeal, demonstrated that he was a valued member of a small insulation systems company, employed by its Bunbury Office. His employer was aware of his 'errors of judgment in the past' and was prepared to provide a reference for him and confirm his readiness to reemploy the appellant (upon his release from bail) as 'a qualified and experienced employee'. There is therefore a steady job being performed by the appellant which is providing income for the family. All the implications are that his partner Jodie has great difficulty in coping with the children, even with the appellant present, and that if he were not available it is unlikely that she would be able to cope for very long without being precipitated into a breakdown due to her depressive condition and her physical restrictions.

74 The three children are still young and need their father/stepfather to assist in their transport to school and, especially, for the special care needs of Zach. It seems clear that this situation was recognised previously when the appellant was granted bail and released from custody pending this appeal. Accordingly, I consider that this is one of those special cases where the exceptional family relationships are such that there would be undue hardship for innocent third parties if the appellant were to be imprisoned immediately. This is one of those occasions in which the court should again 'draw back in mercy' to recognise the special vulnerability of this family. The appellant's past record is undoubtedly very bad and these two offences, in a very short space of time, indicate that he lacks sufficient respect for the law and his legal obligations. On the other hand, as I have said, the second of the offences was 'at the lower end of the scale' and the first offence was committed in circumstances in which the appellant was concerned, inevitably, about the need to get the family home from a remote country area and when, although his offence was a serious breach of the law, his conduct in driving did not represent any actual danger to any other road users.

75 These considerations add further substance and effect to the submissions advanced on behalf of the appellant in relation to the first and second grounds of appeal and lead me to the conclusion that both of those grounds should, for these special and unusual reasons, be upheld. It is necessary to point out that the appellant cannot expect that leniency of this kind will readily be afforded to him again. While no forecast or ultimatum can or should be made of the penalties which might justly be imposed if the appellant were to reoffend in the future (as each case must be determined in the light of the circumstances of its commission: Sentencing Act, s 6), the appellant should be aware that it is only special circumstances which have led to the conclusion that sentences of imprisonment, which his offences would otherwise warrant, should now be suspended.

76 For the reasons given I am satisfied that errors in the sentencing discretion have been demonstrated. I am satisfied that a sentence of imprisonment of 6 months for the first offence was warranted. However, because of s 86 of the Sentencing Act and the power of this court under s 41(2) of the Criminal Appeals Act that should now be varied to a sentence of 6 months and 1 day of imprisonment. For the reasons given, however, I consider that while a sentence of imprisonment for the second offence was also warranted it should be for a shorter period, 4 months' imprisonment, to reflect the less culpable nature of the offending and the plea of guilty. To reflect the principles of totality and mitigating factors accompanying the second offence I consider that that term of imprisonment should be concurrent and not cumulative upon the first. Next, for reasons just examined, I am satisfied that special and exceptional circumstances apply in this case leading to the conclusion that both sentences of imprisonment should be suspended each for a period of 12 months. In relation to the period of disqualification imposed following the second conviction I consider that the period of 15 months imposed in the Magistrates Court should be varied to 9 months disqualification.

77 These conclusions now give rise to the question of from what date or dates these varied sentences and orders should apply. As earlier mentioned the appellant was in prison serving the sentences imposed by the Magistrates Court from 16 May 2011 until on or about 7 July 2011 when he was granted bail. More than 12 months have now elapsed since he was first sentenced and for the whole of that period until now he has either been in custody or subject to special bail conditions. The regime applying while he has been on bail contains its own powerful potential sanctions to discourage him from offending against the law whilst subject to those restraints on his liberty.

78 For the sentences of suspended imprisonment to have the deterrent, rehabilitative and punitive factors which all forms of sentence include to varying degrees, I consider that there needs to be a period during which the appellant is subject to the sanctions and consequences of serving the suspended terms of imprisonment. That would not be achieved by treating the period from the date of the imposition of the original sentences on 16 February 2011 as being the starting point for the 6month plus 1 day period of suspended imprisonment. I am not overlooking the fact that the appellant has already served approximately two months of the original sentence which he might not have had to endure had the sentences which I am now imposing been fixed originally. However, that is a factor which I have endeavoured to take into account when fixing the 12month period during which I consider these two concurrent suspended periods of imprisonment should be suspended. It may also have the consequence that if, which I am sure no one hopes will eventuate, the appellant breaches the terms of the suspended sentences and comes before the court to consider whether or not he should be required to serve immediately the whole of those terms under s 80 of the Sentencing Act, then that period of imprisonment which he has already served might well be taken into account in determining what, if any, part of the terms of imprisonment that were suspended should then be served.

79 Under s 41(3)(d) of the Criminal Appeals Act this court, in varying the sentences imposed in the Magistrates Court, may order that the sentences as varied are to take effect on a date on or after the date of the order allowing the appeal. For the reasons given I consider that that power should be exercised on this occasion and that the two sentences of 6 months plus 1 day and 4 months respectively of imprisonment now imposed on the appellant and which are imposed concurrently, should take effect from the date of this order. Similarly the period of 12 months for which both sentences have been suspended should also take effect from the date of this order. However, I consider that the periods of disqualification imposed by the learned magistrate, and as varied by this court, should take effect from the date of the sentences imposed in the Magistrates Court on 16 May 2011 but subject to s 103 and s 105(2) of the Sentencing Act. This means that the period of licence disqualification imposed in the Magistrates Court as varied by the orders of this court will now be concurrent rather than cumulative (s 105(2)). Those terms of disqualification do not elapse while the appellant was in custody serving the sentence imposed by the Magistrates Court or while he was appealing against the sentences which gave rise to that order.

80 The final orders of the court will be that leave to appeal is granted on all proposed grounds contained in the application for leave to appeal; that the appeal is allowed; that the sentences and orders imposed by the Magistrates Court at Bunbury on 16 May 2002 be varied by being set aside and be substituted by the following sentences and orders, namely:

(i) the appellant be sentenced to a period of 6 months plus 1 day of imprisonment to commence on 21 March 2012, but that that sentence of imprisonment should be wholly suspended for a period of 12 months commencing on 21 March 2012;

(ii) the appellant's motor driver's licence be suspended for a period of 12 months commencing on 16 May 2011;

(i) the appellant be sentenced to a period of 4 months' imprisonment to be served concurrently with the term of imprisonment imposed under (a) above but such term of imprisonment take effect from 21 March 2012, but be wholly suspended for a period of 12 months dating from 21 March 2012; and

(ii) the appellant's motor driver's licence be suspended for a period of 9 months, such a suspension to be cumulative upon the period of suspension imposed under (a)(ii) above.