Marshall v Spent [2000] WASCA 114

Court of Appeal (WA)|2000-05-01|Before: Miller J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARSHALL -v- SPENT [2000] WASCA 114

Criminal law - Appeal - Driving under suspension - Whether imprisonment appropriate for second offence - Principles to be applied

Thompson v The Queen (1992) 8 WAR 387

1 MILLER J: The appellant was charged in the Court of Petty Sessions at Armadale that on 5 November 1999 at Gosnells he had driven a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of it and with having driven the same motor vehicle without being the holder of the appropriate valid driver's licence and whilst legally disentitled to hold a driver's licence. The offences were preferred under the provisions of s 63(1) and s 49(1)(a) of the Road Traffic Act 1974.

2 The appellant came before Mr T J McIntyre SM in the Court of Petty Sessions at Armadale on 23 November 1999 where he pleaded guilty to both charges. He was represented by counsel who conceded that the appellant had last been before the Court on 7 September 1999 when he faced almost the same combination of offences and was fined a total of $1000 with suspension of licence for a period of 12 months. It transpired that the fines had not been paid but attempts were being made to raise money for the purpose of paying them at the appellant's appearance. An explanation was given for the circumstances of the offence in question, it being that the appellant was a subcontractor who had gained employment shortly before 5 November and was at his employer's residence having a celebratory drink. He had driven a friend's car when leaving his employer's residence, notwithstanding that he was under suspension of licence at the time.

3 The learned Magistrate dealt with the matter shortly after the plea had been put forward. He pointed out to the appellant that he was in front of him on 7 September 1999 on a drink driving offence and for driving under suspension and that he had then been warned that if he drove with a combination of alcohol and under suspension again he was at a very high risk of going to prison. The learned Magistrate observed that the warning could not have been heeded because within two months the appellant was back before the court on the same charges, with the result that it was impossible to see any alternative to a term of imprisonment. Reference was made by the learned Magistrate to the seriousness of drink related driving offences and to the fact that driving under suspension was "totally common" with people driving because it was inconvenient to be without a licence, and doing so in anticipation of the fact that they would not be caught. His Worship then reviewed the facts of the case, pointing out that the appellant had a blood alcohol level of .154 per cent at the time of commission of the offence. He observed that the imposition of a fine would be pointless as the appellant already owed fines in excess of $1000 and such a penalty clearly had no deterrent effect. After imposing disqualification of licence for a period of 12 months for driving under the influence (concurrent with previous disqualifications), a further period of suspension of licence of two years was imposed with respect to the charge of driving under suspension. His Worship concluded by saying:

"You've never been in prison before, I appreciate that, and I've got no doubt that being sentenced to a period of imprisonment is going to have a major impact on you but it's something I'm afraid you've brought upon yourself because of your offending behaviour and the point I'm trying to get across is that the community has reached the point in time where the community needs protection from people who drink and drive because of the impact which drinking drivers have upon other people in the community. I'm not lecturing you, Mr Marshall. I'm just putting information on tape in case it's reviewed at any stage.

The period of imprisonment I've determined should be served with respect to each complaint is 4 months. The sentence with respect to the second will be concurrent with the first because the offences occurred at the same time, you've never been to prison, and I'm satisfied that if you learn nothing from a period of 4 months' imprisonment then the court's just wasting their time, in any event. So that's the sentence which I impose. Just go with the officers."

4 On 24 January 2000 Heenan J granted the appellant leave to appeal from the decision of the learned Magistrate on the ground that the sentence imposed for driving under suspension and driving under the influence of alcohol was manifestly excessive. The particulars of the ground of appeal contended that a more lenient sentence was called for because the applicant had pleaded guilty at the first opportunity; he was unrepresented; he had a prior record which did not call for imprisonment; and his antecedents generally called for a more lenient sentence.

5 Counsel for the appellant argued on the appeal that the learned Magistrate had given no consideration to matters advanced on behalf of the appellant in the plea put forward on his behalf. It was contended that no consideration had been given to the fact that the appellant had pleaded guilty and neither had there been any consideration as to how far a suspended sentence might be appropriate. It was submitted that the offence of driving under the influence was effectively a first offence under the relevant provision and therefore the imposition of a sentence of imprisonment was inappropriate.

6 Reference was made by counsel for the appellant to a number of cases which in the last two years have examined the appropriate disposition of repeat offences under the provisions of s 49 of the Road Traffic Act 1974. Reference was made in particular to my own decisions in Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998, Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999 and Stewart v Waghorn [1999] WASCA 150. The decision of McKechnie J in O'Brien v Richie, unreported; SCt of WA; Library No 990123, 17 March 1999 was relied upon as an indication that a suspended sentence may be entirely appropriate in a case of repeated driving under suspension.

7 In Krakouer v Durka (supra) I followed the persuasive authority of the Full Court of the Supreme Court in South Australia in Police v Cadd & Ors [1997] SASC 6187; (1997) 69 SASR 150, where the majority of the Court of five Justices considered that imprisonment was appropriate for the ordinary case of driving whilst disqualified and that the offence of driving whilst disqualified (or under suspension) is of such a type and intends to be committed in circumstances such that cases in which the circumstances of the offence support suspension of sentence will be unusual. Doyle CJ pointed out (at 167 - 168) that circumstances justifying suspension are unlikely to be found in routine or run of the mill cases. His Honour did, however, concede that individual consideration must still be given to all matters and a suspended sentence may, in exceptional circumstances, be imposed. The type of case identified by the Chief Justice as being such an unusual case was one of genuine emergency or a case in which the driving was really trivial.

8 In Krakouer v Durka I concluded (at 17) as follows:

"... the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of genuine emergency; cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and 'reasons militating in favour of an exercise of mercy'."

9 In Calway v Wiebe (supra) I followed the reasons I had expressed in Krakouer v Durka and concluded that there had been no error in principle, nor any exceptional circumstances such as to interfere with a sentence of imprisonment of 4 months imposed upon the appellant. The case of Stewart v Waghorn (supra) was a case in which I concluded that a sentence other than one of immediate imprisonment was appropriate for driving under suspension. Because medical evidence had come to light which revealed a condition in the appellant which was for the first time diagnosed and which explained his anti-social behaviour (including driving under suspension) I considered that although a sentence of 6 months' imprisonment would ordinarily have been appropriate, such a sentence should be suspended, to give the appellant a "last chance". In my concluding comments in the case I summed up the ordinary position in cases of driving under suspension as follows (at 18):

"It is the case that in Krakouer v Durka (supra) and Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999, I took the view that the offence of repeatedly driving whilst disqualified ordinarily warrants imprisonment and whilst a suspended sentence of imprisonment will always be open in the particular circumstances of any case, it would be an unusual case where the circumstances of the offence supported suspension. Whilst McKechnie J favoured a suspension of sentence in O'Brien v Ritchie (supra), his Honour was to some extent influenced by the fact that the appellant in that case had, during his period on remand, been incarcerated in maximum security."

10 Consistent with the cases I have previously decided and with authority generally, it is my view that the contention of the appellant that he should have been sentenced to other than a finite term of imprisonment cannot be made out. In the present case the learned Magistrate considered the option of a fine but rightly concluded that such penalty would serve no good purpose. It is true that the learned Magistrate made no reference to suspending the finite term of imprisonment he imposed, but nor was he obliged to do so. Authority strongly supported his conclusion that for the appellant's repeated offence of driving under suspension and his drink driving offence, only a sentence of imprisonment was appropriate. The sentence of 4 months' imprisonment on each charge to be served concurrently was entirely within the range which it was appropriate for the learned Magistrate to impose. This being so, I find no substance in the grounds of appeal and dismiss the appeal accordingly.

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