McDONALD -v- WHITE [2007] WASC 138 (22 June 2007)

Supreme Court of WA|2007-06-22|Before: Johnson J

1 JOHNSON J: The appellant, Lisa Mary McDonald, seeks both an extension of time within which to appeal against sentence and leave to appeal against sentences imposed on her on 6 March 2007 in the Busselton Magistrates Court. On 22 May 2007, Blaxell J ordered that the application for leave to appeal and the appeal be heard together.

2 With respect to the extension of time, the respondent declined to be heard on the issue, leaving the appellant to satisfy the Court that it was appropriate in the circumstances to extend time. The appellant maintains that she first contacted the Legal Aid Commission on 18 March 2007. Counsel advised the Court that the Perth office of Legal Aid forwarded a request to the Bunbury office to obtain and consider the transcript and provide advice. It took some time to obtain the transcript and further time to be provided with a copy of the prosecution notices. Counsel further advised that it is not the practice of Legal Aid to make a decision to appeal until it has all the relevant information; in particular, the transcript. The appeal was lodged shortly after the prosecution notices were obtained. As it appears that the appellant took prompt action, but the delay occurred because of the need to obtain and consider all relevant information before granting aid, I am prepared to grant an extension of time.

3 The appellant pleaded guilty to, and was sentenced for, a number of offences under the Road Traffic Act 1974 (WA) ("the RTA"), which were committed on 13 February 2007, and to an offence of unlawful damage contrary to the Criminal Code (WA) ("the Code") committed on 1 January 2007. The offences and the penalties are set out in the following table:

4 The Magistrate ordered that the 6 months' imprisonment for reckless driving be served cumulatively on the sentence of 9 months' imprisonment for driving under suspension. The 6-month sentence for unlawful damage was ordered to be served concurrently. The total effective sentence was 15 months' imprisonment and the appellant was made eligible for parole.

5 The appellant appeals only the sentences for the offences for which she was imprisoned, and only in relation to the terms of imprisonment and not the periods of licence disqualification. The grounds of appeal are these:

"1. The Learned Magistrate erred in failing to give the Appellant any discount on the sentences imposed to account for the Appellant's early pleas of guilty.

The sentence of 6 months imprisonment imposed for the offence of Unlawful damage was manifestly excessive as the offence did not warrant a sentence of imprisonment.

(a) The offence was committed whilst the Appellant was significantly intoxicated.

(b) The offence was impulsive and unsophisticated with little planning involved.

(c) This is the Appellant's first unlawful damage offence.

(d) The offence committed by the Appellant cannot be categorised as a top of the range Unlawful damage offence.

(e) A first offence of unlawful damage is normally dealt with by way of a fine.

(f) The maximum penalty for Unlawful damage is imprisonment for 12 months and a fine of $12,000.

The sentence of 6 months imprisonment imposed for the offence of Reckless driving was manifestly excessive.

(a) The offence of reckless driving concerned the Appellant driving at a dangerous speed of 150 kms/hr in a 70 kms/hr zone.

(b) It was the Appellant's first Reckless driving offence.

(c) The Appellant has no convictions for Careless driving or Dangerous driving.

(d) The Appellant's driving did not put the safety of other road users at risk.

(e) The offence occurred at 2.57 am in a country road. Apart from the pursuing police car there was only one other car in the vicinity of the Appellant when the driving occurred.

(f) The Appellant's driving could be categorised as constituting a lower to medium end of the scale Reckless driving offence.

(g) For a first offence of Reckless driving, a fine would normally be imposed.

(h) the maximum penalty for the offence of Reckless driving by being in excess of 45 kms/hr over the speed limit is 9 months imprisonment.

The Learned Magistrate in imposing sentences of imprisonment erred by placing too much weight on the Appellant's prior record. This resulted in sentences that were disproportionate to the criminality displayed by the Appellant in committing the offences she was sentenced for.
The learned Magistrate in finding that previous penalties imposed on the Appellant had been too lenient and had failed to stop the Appellant reoffending erred by imposing sentences that marked the Court's disapproval of both the Appellant's previous conduct and the Appellant's failure to stop reoffending.
The Learned Magistrate erred in not ordering pre-sentence and psychological reports when requested by the Appellant's Counsel.

(a) In the brief plea in mitigation presented the following factors were brought to the Learned Magistrate's attention:

the Appellant was a mother of an 8 week old child,
the Appellant was suffering from post-natal depression
the Appellant committed the driving offences she was before the Court for within 24 hours of her 8 week old son being apprehended by the Department of Community Development.

The Learned Magistrate erred in not giving any meaningful consideration to the suitability of the imposition of suspended sentences of imprisonment.
The aggregate sentence of 15 months imprisonment imposed on the Appellant was disproportionate to the overall criminality involved in the offences committed by the Appellant when viewed in their entirety, and in regard to all the circumstances of the case, including those personal to the Appellant.

(a) The Appellant had never been sentenced to a term of imprisonment before.

(b) No account was taken of the personal matters raised in mitigation by the Appellant's Counsel.

(c) No account was taken of the Appellant's early pleas of guilty."

6 The following statement of material facts was made to the Court by the prosecutor:

"At 8.40 am on 1 January this year, the accused was in a state of now quite affected by alcohol and possibly drugs, attended at 4 Grove Street, Dunsborough, and she is the former de facto partner of the complainant, Neil Finney. The accused kicked the glass sliding door at the front of the house, the force of the kick caused the glass to crack.

She then walked along the front of the house to the lounge room windows and started banging on one of the front windows and started making moaning noises. This awoke the complainant. He came to the lounge room window to see what was happening. She was banging on the front window with both her hands for about a minute until the force of the blows caused the glass to smash, and she fell forwards and through the smashed front window.

She pulled herself out of the window frame, walked into the house, at this stage was bleeding badly from a cut to her left arm, and she told - the complainant told the accused to leave. She complied and he contacted the police a short time later, but he did so to request an ambulance for her injury. In any case, the police spoke to her at the scene, she admitted the facts. And, sir, costs there 105.70, restitution $490 and three - so we're looking at $830 in total. Sorry, I'll just run through that again, sir: $490 in total for the door and window, sir ...

Now, the traffic matters, now, this is on 13 February 2007. The time was 2.57 am and she was driving a Toyota Camry east on Caves Road, Siesta Park. Now, there was a marked police sedan travelling in the opposite direction and she was picked up on mobile radar at a detected speed of 128 kilometres per hour, so it's a 90 zone; the police did a U-turn, followed - put the lights on, followed her vehicle in order to question her about exceeding the speed limit and, in fact, they turned on their emergency lights and followed her.

Instead of slowing down she accelerated to a speed of 140 and then 150. She maintained the speed, travelling through the 90 kilometre per hour zone, and so the police activated their siren, a pursuit ensued and she continued on Caves Road, went into a 70 zone at Abbey, maintained a speed at between 140 and 150 through the 70 zone.

The carriageway was dry in most parts but there were reticulate sprinklers that were operating; some of the parts of the road were wet. Now, just near Ray Avenue, in Broadwater, the accused rapidly approached the vehicle from behind; that car was travelling at about 70, the accused pulled off the carriageway and her and the police continued east on Bussell Highway, Broadwater. She maintained the speed of between 140 and 150. The police were following her but maintaining a safe distance between the two.

Eventually she slowed near the Broadwater shopping centre, turned right into a gravel entry to her property - she lives at 560 Bussell Highway, she accelerated, causing the vehicle to slide sideways, travel on a narrow dirt track at a speed described as being excessive in the conditions. The police were following. She made a sharp right turn, almost lost control of the vehicle, continued on the dirt road and stopped near the front of her house.

When the police exited the vehicle they were about to approach her when she again accelerated. She then travelled for a short distance, reached the front of her house, and at this stage the police were back in their car; they followed her again. She stopped the vehicle, reversed backwards to the front of the police - that's in front of the police, then locked her door, drove forwards, stopping near her own front door and eventually the police removed her from the vehicle.

She claimed she thought she was travelling at 90 most of the way. In any case they are the facts on the reckless and also the fail to stop. It's suggested that she made no effort to stop when called upon. The chase occurred over three minutes, over a distance of six and a half kilometres, lights and siren on. One explanation on one of the matters, she said she didn't see the police and she claimed she's half deaf, subject of a driver's licence disqualification at the time and failed the roadside preliminary test and the calculated blood alcohol reading was 0.1380. Sir, it's a first reckless, it's a fifth driving under suspension ... "

7 The explanation offered on behalf of the appellant as to why she drove a vehicle on that day was that she suffered from post-natal depression, having had a child some eight weeks earlier. She had left the child with her mother and her mother had rung her at work and told her that the Department for Community Development ("the Department") had come and taken the child away. It was submitted that the appellant was absolutely frantic and "went rushing around", trying to get some help. Apparently, she went to her friend's place "to get some consolation". She started drinking there in the middle of the afternoon until late at night. She then got in her car and drove. It was submitted that the appellant did not clearly recollect all the events that took place, but accepted the prosecution's statement of facts. Although the appellant had managed to stay out of trouble for a few years, it was said that she drove whilst intoxicated and under disqualification because she was in turmoil and emotionally traumatised. Essentially, the explanation offered was that, in the circumstances, the appellant simply could not control herself. During the hearing in the Magistrates Court, the appellant made a number of interjections. Although her comments are described in the transcript as being, in part, "indistinct", it is recorded that she maintained she was suffering depression, emotional trauma and emotional damage. At one point, the appellant told the Magistrate that she would not have been drinking if the Department had not "abducted" her baby that morning.

8 At the time of commission of these offences, the appellant had previous convictions for driving under suspension and for driving under the prescribed percentage of alcohol ("excess 0.08 per cent"). Her offending commenced in August 1996 when she was convicted of excess 0.08 per cent and lost her licence. In October 1996, she was convicted of driving under suspension, wilfully misleading a police officer, driving an unlicensed vehicle and failing to wear a seatbelt. In November 1996, the appellant was again convicted of driving under suspension, excess 0.08 per cent and driving an unlicensed vehicle. For each of these offences the appellant was fined and, where applicable, her licence was suspended. No convictions are recorded in 1997.

9 In September 1998, the appellant drove whilst under fines suspension and when dealt with was fined and given a licence disqualification. On 30 October 1998, the appellant again drove whilst under fines suspension. On 31 October 1998, the appellant committed another driving under suspension offence. She was not dealt with for these three incidents of driving under suspension until January 1999, when she was again fined and given a further period of licence disqualification.

10 In November 1999, the appellant was convicted of manslaughter and sentenced to a term of imprisonment of 3 years and 6 months, suspended for 2 years.

11 It appears from the appellant's criminal record that no further offences were committed until 2002 when, on 13 October 2002, the appellant was apprehended for excess 0.08 per cent. When dealt with by the Court in November 2002, a fine and a 12-month licence disqualification was imposed. On 2 October 2003, the appellant again drove a vehicle whilst under suspension and with a blood alcohol level in excess of 0.08 per cent. She was given a 6-month community based order, 50 hours of community service work and a further 9-month licence disqualification. At the time, the vehicle the appellant was driving was unlicensed, although that particular offence was not dealt with at the same time and a fine was later imposed.

12 The next group of offences occurred in March 2004. The appellant committed, and was later convicted of, driving under suspension, wilfully misleading a police officer and exceeding the speed limit by 20 to 29 kilometres per hour. The appellant was given an intensive supervision order and a further period of licence disqualification. In May 2004, the appellant was convicted of common assault and breaching a violence restraining order. She was also convicted of possessing a prohibited drug. In relation to each of the offences, the appellant was placed on a 12-month intensive supervision order and ordered to perform community service work.

13 According to the appellant's record of traffic convictions, an offence of driving without a valid driver's licence occurred on 29 July 2004. The result of that offence was that the appellant was released without sentence under s 46 Sentencing Act 1995 (WA). The precise details of that offence are not known but, in view of the appellant's criminal history, it is somewhat surprising to find that any traffic conviction should result in the Court not passing sentence. The conviction breached the intensive supervision order granted in relation to the offences which were dealt with in May 2004. The outcome of the breach is difficult to discern from the record of traffic convictions. From what I am able to glean, it appears that the intensive supervision order was cancelled, but no penalty was imposed pursuant to s 46 of the Sentencing Act 1995.

14 The record of traffic convictions reveals that, on 30 September 2005, the appellant committed the offences of driving under suspension and excess 0.08 per cent. In relation to both those charges, the appellant was given a community based order, community service work and a licence disqualification for 9 months and 14 months respectively. In October 2005, the appellant committed a burglary offence and was fined.

15 In 2006, the appellant was convicted of two offences of disorderly behaviour in public, both of which occurred on 11 August 2006. She received fines for both offences.

16 The damage offence which is now before this Court was committed on 1 January 2007 and the remaining offences occurred on 13 February 2007.

17 On my calculation, the appellant has eight prior convictions for driving under suspension, two of which relate to fines suspension. There is a ninth prior conviction of driving without a valid driver's licence, although the precise nature of that particular offence cannot be identified from the record of traffic convictions. The appellant also has five prior convictions for excess 0.08 per cent offences. She has convictions for other offences relating to her driving, including wilfully misleading a police officer, driving an unlicensed vehicle, exceeding the speed limit by 20 to 29 kilometres per hour and failing to wear a seatbelt. The balance of the appellant's criminal history includes manslaughter, disorderly conduct, burglary, common assault, breach of a violence restraining order and possessing a prohibited drug.

18 In terms of outcome, the appellant has been fined, placed on community based orders and intensive supervision orders, ordered to perform community service work, released without sentence and sentenced to suspended imprisonment. The intensive supervision order was breached by the commission of another driving under suspension offence. Although it is not absolutely clear, it seems that the appellant successfully completed all other periods of community based supervision, although she continued to offend. It is also the case that, despite having breached the intensive supervision order, for subsequent offences fines and community based orders were again imposed.

19 In imposing the specific sentences, the Magistrate made few comments as to his reasoning. When sentencing for the offence of driving under suspension, the Magistrate noted that this was the eighth time the appellant had committed such an offence. When imposing the fine for failing to stop when called upon, the Magistrate said:

"That's another aggravating circumstance. When she was driving in this manner, when the police come [sic] behind her and told her to stop, she had the opportunity then to bring it all to an end but that's when she sped up to an even greater rate."

20 Much of the basis for the sentences imposed can be gleaned from the statements of the Magistrate during the course of the plea in mitigation. The Magistrate noted the number of prior convictions for driving under suspension. He also referred to, and inquired about the circumstances of, a conviction for manslaughter. The comment was made by the Magistrate that the appellant's record indicated an ongoing process of blatant disregard for the law and that, as a result of the appellant's irresponsibility, she was putting people's lives at risk. At an early point, the Magistrate indicated that he considered a custodial disposition to be the appropriate outcome because of the number of previous convictions for driving under suspension. He also referred to the circumstances of the high speed chase, which even the appellant's counsel described as "quite horrendous", and also to the fact that the appellant had an alcohol reading of 0.1380 per cent.

21 When the appellant interjected and said that she would not have been drinking if her baby had not been abducted, the Magistrate made this comment: "That's no excuse for drinking. That's nonsense to suggest that that's why you were drinking." The appellant insisted that it was the reason and the Magistrate then made this comment:

"It's absolute nonsense to suggest that you were - and the problem with you is, it appears, that you're not prepared to accept responsibility for anything, and here is a case here where you've acted utterly irresponsible [sic] and it's someone else's fault ... "

22 In the affidavit in support of the application for leave to appeal, extension of time in which to appeal and bail, in addition to annexing the various documents necessary to consider the appeal, the appellant set out explanations for the offences dealt with by the Magistrate and for a number of previous offences of driving under suspension. In relation to the offence of unlawful damage, the appellant indicated that she committed this offence after consuming a significant quantity of alcohol on New Year's Eve. She said that, at 8.30 am the next day, whilst intoxicated, she went to the house of her former partner in the hope of seeing her 2-year-old daughter whom she had not seen for six months prior to the offence "due to Angelic's father refusing to let me see her". The balance of her account is as follows:

"I recall banging on the window of the house to attract Neil's attention so he would let me in. Because I was so drunk, I fell through the window severely cutting my arm. As a result of this injury, I almost died. After injuring myself I lay on the ground and some young men who were at a party at a nearby house on seeing my condition telephoned an ambulance so I could be taken to hospital. While I was lying bleeding on the ground, Neil was saying to me 'hurry up and die, I have phoned the police'. I was taken by ambulance to hospital where an artery I had severed was repaired".

23 In relation to the offence of driving with the prescribed percentage of alcohol, the appellant stated that, whilst she was at home and looking at her son's baby toys and the cot, she became more depressed. She felt she needed to get out of the house to stop feeling so bad. She drove to the house of a girlfriend seeking comfort and support. She said:

"Unfortunately my friend offered me alcohol. Because I was feeling so depressed, I sought solace in the company of my girlfriend and in the drinking of alcohol. I stayed at my friend's house until the early hours of 13 February 2007 when I decided to drive home. Whilst I was driving home, I committed the offence of reckless driving ... "

24 As to the driving offences in January 2006, the appellant explained that she was at a girlfriend's house having a few drinks when she was telephoned by her then partner who told her to get her car out of his driveway or he would smash it up and take it to the wreckers. She stated that, because she did not want her car to be smashed up, she went to the car and drove it a short distance to a friend's house. The driving offences in May 2004 are said to have occurred when she was pregnant and living in Dunsborough. She stated that she "needed to do some shopping and because it was raining she drove". She could not specifically recall the circumstances surrounding her other driving offences.

25 There is little about the appellant's account of these incidents which evidences an acceptance of responsibility for her own wholly inappropriate conduct. Indeed, the tone of the account is that the offences were caused by the actions of someone else, or some event beyond her control; either her friend offering her alcohol, her ex-partner not letting her see her child for six months, her ex-partner threatening to damage her car if she did not move it, being pregnant and there being rain when she "needed" to shop. No contrition is expressed either directly or in the way in which she related the circumstances.

26 When I mentioned to the appellant's counsel at the hearing of the appeal that the Magistrate's observation was consistent with my own from reading the affidavit, the response was to the effect that this material should not be taken into account because the appellant was required to provide an explanation. However, the appellant was not required to give an account of these events which transfers at least part of the responsibility for her conduct on to others. I believe the conclusion is open on the material before the Magistrate, including the statements made by the appellant herself. The information in the affidavit is simply consistent with the information available to the Magistrate.

27 Of course. the Magistrate was not privy to the information in the affidavit. However, it is apparent from the transcript that, on the morning of the day on which he sentenced the appellant, the Magistrate presided over the Department's application with respect to the appellant's child. The Magistrate said:

"I know all about her; I know about it from what you've told me and what I learned this morning. I know enough about her. And all she's doing is trying to hide behind the emotional trauma and she just reckons she can do what she likes and the court will do nothing about it. She's wrong."

28 The Magistrate was, in my view, quite entitled to take into account information about the appellant gleaned by him from the earlier proceeding. Under s 15 of the Sentencing Act 1995, in order to decide on the proper sentence to be imposed, the Court in sentencing an offender may inform itself in any way it thinks fit. As the appellant was involved in the application, her counsel would have been able to address any issue from that proceeding if necessary. No application was made on behalf of the appellant for the Magistrate to excuse himself from dealing with the appellant in view of his earlier involvement in the application by the Department with respect to the child. The issue was not even raised by counsel for the appellant.

29 The Magistrate also made the comment that the Courts had been going soft on the appellant "for no thanks for too long" and referred to the fact that, when she appeared in court on a driving under suspension charge and an excess 0.08 per cent charge on 24 January 2006, she received a community based order for 9 months, but had continued to offend.

30 In all the circumstances, I believe the Magistrate was justified in forming the view that the appellant continually failed to accept responsibility for her actions and, despite being given the benefit of non-custodial sentences by the Courts, had not changed that aspect of her character and had not been deterred from reoffending.

31 In this ground, the appellant alleges that the Magistrate failed to give a discount for the appellant's early plea of guilty. Although it is not a specific ground of appeal, in the appellant's written submissions with respect to this ground, counsel asserted that the Magistrate erred in not stating in open court that he had reduced the sentences imposed on account of the appellant's pleas of guilty.

32 Section 8(2) of the Sentencing Act 1995 provides that a plea of guilty is a mitigating factor and the earlier in the proceedings the plea is made, the greater the mitigation. Under s 8(4), if the Court reduces the sentence because of a mitigating factor, the Court must state that fact in open court.

33 The fact that the Magistrate was aware that the appellant had pleaded guilty is obvious because the plea was made before him a short time before sentence was passed. That the plea was made at an early stage would also have been apparent from the prosecution notice which indicated that the appellant's first appearance was on 13 February 2007, at which time the matters were adjourned to 6 March 2007 and the pleas of guilty were entered on that date. It is correct to say, however, that the Magistrate did not refer at any stage of the proceedings to the impact of the plea of guilty on the sentences. The difficulty lies then in determining whether the deduction was not made or simply was not mentioned. Although there is a statutory obligation to state the fact that the sentence is reduced because of the plea of guilty, the mere failure to make that statement is not one which vitiates the sentence. It is the failure to make the deduction which has that effect.

34 The appellant relies on the decision in Ryder v Abbott [2007] WASC 41 where Templeman J held (at [28] - [29]) that the Magistrate did not state in open court that she had reduced the sentence she would otherwise have imposed because of the plea of guilty and, as a result of that omission alone, his Honour drew the inference that the Magistrate did not give any weight to this mitigating factor. In Fullgrabe v The State of Western Australia [2006] WASCA 138, Martin CJ, with whom Wheeler and Roberts-Smith JJA agreed, observed (at [28] - [29]) that, in taking account of mitigating factors such as an early plea when passing sentence, the public interest will be enhanced if the sentencing Judge identifies both the precise reduction in either absolute or percentage terms and the factors which have resulted in the deduction. However, as Martin CJ acknowledged, it is only the fact that the sentence is to be reduced by reason of a mitigating factor which the Judge is obliged to mention: s 8(4) Sentencing Act 1995. Martin CJ noted (at [29]) that, if the Judge had adopted this approach, it would have been apparent to him that he had erred in respect of the sentence because it was clear that in fact no discount for the early plea was provided.

35 As counsel for the respondent noted in submissions, there is authority for the proposition that the failure of a Magistrate to state in open court that he or she has reduced the sentence because of a plea of guilty is a miscarriage of sentencing discretion: see, for example, Chivers v The State of Western Australia [2005] WASCA 97 per Pullin JA at [53] and per Steytler P at [18] - [19].

36 In Worthington v Western Australia [2005] WASCA 72, Pullin JA made the obiter comment (at [40]) that the absence of any reference to actual consideration of a plea of guilty in the course of sentencing should as a general rule lead to an inference that the plea was not given any weight. His Honour referred to the decision in R v Thomson (2000) 49 NSWLR 383 at [52] where the Court reached that conclusion in the context of a provision of the Crimes (Sentencing Procedure) Act 1999 (NSW) to the same effect as s 8(4) of the Sentencing Act 1995.

37 In "H" v The State of Western Australia [2006] WASCA 53, Steytler P noted (at [10]) that, given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing Judge has overlooked it. However, Steytler P further observed that the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea. The following decisions were cited in support of Steytler P's approach: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]. Although in Moulds v The Queen (supra) the Judge had specifically mentioned that the applicant had pleaded guilty (at 9), in Little v The Queen (supra) Kennedy J said (at [13]):

"So far as the suggested failure of the learned sentencing Judge to give a discount in the sentence to recognise the applicant's plea of guilty is concerned, I have no reason to doubt that, although his Honour was required by s 8(4) of the Sentencing Act 1995 to state that fact in open court if he reduced the sentence he would otherwise have imposed, he did in fact take it into account. The pleas were the subject of quite extensive discussion during the submissions on sentencing, and I do not consider that his Honour would have overlooked this factor."

38 Steytler P also observed in "H" v The State of Western Australia (supra) (at [10]) that the sentence will not be overturned because of a failure to comply with s 8(4) if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2005 (WA). Clearly, it is necessary for the court to consider the sentence itself to determine whether it reflects all relevant factors, including the plea of guilty.

39 Reducing the sentence on account of a plea of guilty is an approach which pre-dates the provisions of the Sentencing Act 1995. In R v Gray [1977] VicRp 27; [1977] VR 225, in a joint judgment, McInerney and Crockett JJ acknowledged that a plea of guilty may operate in mitigation of sentence and said (at 232):

"The sentencing judge possesses a discretion of great width. It would be improper to seek to define or prescribe the area in which that discretion is to operate. It is for the judge to interpret the quality and implications of the plea. If it is one calculated to serve the public interest it would be proper to consider whether to allow the plea to act in mitigation, but not necessary to do so."

40 In R v Shannon (1979) 21 SASR 442, King CJ (with whom Mohr J concurred and whose conclusions were supported by Wells J, with whom Zelling J concurred) held (at 452) that there were strong practical reasons for repudiating the proposition that a plea of guilty, apart from remorse, cannot be treated as a mitigating factor. King CJ further identified a number of propositions concerning the mitigatory effect of a plea of guilty.

41 The Supreme Court of Western Australia also adopted the principle that a plea of guilty was potentially mitigatory, even if made without remorse: see Johnson v The Queen (1992) 57 A Crim R 290. The decision in Johnson v The Queen (supra) was applied in R v Doyle (1994) 71 A Crim R 360 at 364. Anderson J, in dissent, although not in relation to the principle itself, stated (at 368) that some mitigation could be found in the plea of guilty despite the fact that the respondents had been caught "red-handed" because it saved the cost of a trial. His Honour added (at 368):

"In my view, his Honour did no more than give effect to the policy that guilty people should be encouraged to plead guilty at the earliest opportunity in the general interests of the administration of criminal justice."

42 In R v Foster (1992) 59 A Crim R 14, at 22 Seaman J (with whom Malcolm CJ and Ipp J concurred) acknowledged the discretion to discount a sentence where there is a plea of guilty but considered on the particular facts of that case that the respondents' pleas of guilty did not merit any significant discount because the case against them was very strong indeed. In Chivers v The State of Western Australia (supra), Steytler P noted (at [17]) that it has long been recognised that a plea of guilty by an offender is a mitigating factor and the earlier it is made, the greater the mitigation.

43 There are numerous other authorities which make it clear that the principle has been part of the law of Western Australia for many years before the Sentencing Act 1995 was passed. The difference now is that the principle has statutory backing and specific statutory requirements. Therefore, where there is a plea of guilty and sentence is passed by an experienced Magistrate, but specific reference is not made to a reduction for the early plea, I would not be prepared to find, for that reason alone, that the Magistrate was unaware of the requirement to discount the sentence because of the early plea of guilty. Whilst it is always possible that even an experienced Magistrate might forget a fundamental, if the sentence imposed is within a sound discretionary range for an offence of that type and of that level of seriousness, taking into account the plea of guilty, in my opinion, it would not be appropriate to conclude that the Magistrate has fallen into error by omitting to give effect to the plea, simply because the Magistrate omitted to make the statement required under s 80(4) of the Sentencing Act 1995. The finding of error would be based on an assumption rather than a conclusion.

44 Perhaps the answer is a matter of terminology. In Chivers v State of Western Australia (supra), the Judge mentioned the plea of guilty, but did not say that he was giving a discount for having done so. The error identified by Pullin JA at [53] was in failing to say that because of the plea of guilty he was reducing the sentence he would otherwise have imposed. To my mind, that is also the appropriate and more accurate way of identifying the error where there is no reference to the plea of guilty. The Court may then consider the sentence to see if an error has in fact been made in the way in which the Judge or Magistrate dealt with the plea. As I understand it, this is the approach referred to by Steytler P in "H" v The State of Western Australia (supra).

45 Counsel for the respondent submits that there is also a line of authority which suggests that even where a Magistrate does not expressly state that he or she is giving a discount for a plea of guilty, it can be inferred that the Magistrate was aware that it was a plea of guilty and took it into account: Findlay v The State of Western Australia [2007] WASC 61 at [32]; Bates v Wheatley [2000] WASCA 38 at [33] and [36]. Further, counsel for the respondent suggests that, even if the Magistrate failed to give a discount for a plea of guilty, this does not of itself give rise to an appellable error: Findlay v The State of Western Australia (supra); Fullgrabe v The State of Western Australia (supra).

46 The authorities to which I have been referred and a number of other authorities I have considered take different, and often conflicting, approaches in dealing with the situation where no reference is made to the plea or to any direction in sentencing arising from the plea of guilty. As I have indicated, I am not prepared to find that the Magistrate failed to take into account the plea of guilty simply because he did not refer to it. However, the Magistrate did err in failing to state whether he reduced the sentence on account of the plea of guilty.

47 It is necessary then to consider whether, and to what extent a discount should have been given in this case for the plea of guilty and to consider whether the sentence imposed reflects that, or whether, even making an appropriate reduction for the plea, no different sentence, in all the circumstances, should have been imposed. I therefore propose to firstly deal with those grounds of appeal that allege that the sentences for the particular offences were manifestly excessive. However, in considering whether the sentences are excessive it will be necessary, amongst other matters, to consider what would be an appropriate discount for an early plea of guilty in the circumstances of this case.

48 The appellant submits that a plea of guilty on the fast track system in indictable matters entitles a defendant to a discount of up to 30 to 35 per cent from the otherwise appropriate sentence. Early pleas of guilty in the Magistrates Court are said to be similarly discounted. As to the latter proposition, the principle would apply to any Court in which criminal charges are brought and disposed of by way of a guilty plea.

49 In Ryder v Abbott (supra), at [34] Templeman J stated (at [34]): "It is now accepted that an offender who pleads guilty at an early stage can expect a discount of up to one-third on the sentence which would otherwise be imposed." However, in that case his Honour considered that a 25 per cent reduction would be appropriate. The appellant in that case was charged that he took part in an unlawful assembly. He was involved, together with approximately 40 other members of his family, in a conflict with another large group. Such a situation presents considerable difficulties of proof of an individual's presence and actions, although I must note that the extent of any admissions made or eyewitness statements available is not apparent from the judgment.

50 In "H" v The State of Western Australia (supra), Steytler P referred to the rationale underpinning the requirement, now in statutory form, to confer a discount on sentence where an offender pleads guilty. His Honour commenced by referring (at [9]) to the extent of the reduction in sentence which was said to usually fall somewhere between 20 per cent and 35 per cent. Steytler P stressed that this was merely the usual range in the case of fast track pleas and added that the reduction might be less, and even substantially less, in the case of a late plea and an absence of any real remorse. Steytler P also noted (at [9]), citing Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336 and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672, that the amount of the reduction is discretionary and sentencing Judges "must be accorded a wide measure of latitude which will be respected by appellate courts". His Honour also observed (at [12]) that it has been said in this jurisdiction that even a plea which is late, and almost inevitable because of the strength of the prosecution case, will attract a substantial discount: Cardile v The Queen [2003] WASCA 72 at [45] per Wheeler J, with whom Malcolm CJ agreed. With respect to that proposition, Steytler P commented (at [12]):

"Just how substantial that discount should be is a matter falling within the discretion of the sentencing judge, but it seems to me that in a case in which the plea comes very late and is not indicative of genuine remorse it would ordinarily result in a very much smaller reduction than might have been given had it come earlier and been accompanied by genuine remorse. However, the amount allowed will, in the end, depend upon all of the circumstances of the individual case."

51 With respect, I have some difficulty in seeing how a substantial discount could be given for a late plea on an easily proved charge, by a person showing no real remorse, in a system where the level of discount is dependent on a descending scale with a starting point of 35 per cent and where the later the plea is made, the lower the discount. The answer might lie in the intended meaning in this context of the somewhat overused term "substantial". The Court may well have used it in the sense of being something other than nominal or even negligible.

52 Whilst I accept that the deduction for a plea of guilty is accurately represented by a range of somewhere between 20 per cent and 35 per cent, a figure within that range would more usually apply where the plea is early and is indicative of remorse and an acceptance of responsibility. Other factors might increase the extent of the deduction; for example, where an offender who might otherwise not have been identified surrenders to police, but the absence of some or all of those factors, and the existence of a specific factor in a particular case, may reduce or even remove the deduction altogether.

53 In Cameron v The Queen (2002) 209 CLR 339 , at 343 Gaudron, Gummow and Callinan JJ held that reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation of sentence requires the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, to be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. The Court did not elaborate on the meaning of "facilitating the course of justice" in circumstances where the costs of trial are excluded. The only matter which springs to mind is relieving the witnesses of the inconvenience and emotional cost of giving evidence. Other matters such as the proposition that resources, including police resources, are thereby freed up to be utilised on other cases, and that delays in matters going to trial will be reduced, seem to me to attract the same criticisms as the proposition that a guilty plea will save the community the expense of a contested hearing. On that basis, any authority which sets a range which includes discounting a sentence to reflect the benefit of avoiding the cost and inconvenience to the State of a trial may require further consideration before being applied unreservedly.

54 In "H" v The State of Western Australia (supra), Steytler P observed (at [12]) that a plea of guilty is usually indicative of some remorse and of an acceptance of responsibility. His Honour added that it is these factors, if present, which, together with a willingness to facilitate the course of justice, lead to making a reduction in sentence on account of the plea. Perhaps the meaning of "facilitating the course of justice" then is an acceptance of responsibility which extends beyond admitting culpability to the court by way of a plea of guilty and includes, for example, an initial admission to police or handing oneself in, conduct which frees police to use their resources more productively, and inculpating co-offenders.

55 It can be seen from the authorities to which I have referred that the factors that are given consideration in determining the percentage discount to be applied for a plea of guilty are the timing of the plea of guilty, remorse, acceptance of responsibility, and the general interests of the administration of criminal justice.

56 In my view, the authorities do not support the proposition that a plea of guilty necessarily indicates remorse or acceptance of responsibility on the part of an offender. Other acts or statements of the offender may undermine or reinforce those conclusions and the extent of any deduction for the plea of guilty will be affected by such matters.

57 In "H" v The State of Western Australia (supra), Steytler P (at [9]) emphasised that the amount of the reduction is discretionary and sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts.

58 In view of the findings I have made concerning the sentences of imprisonment, which are referred to hereunder, I would dismiss this ground of appeal.

59 In this ground, the appellant alleges that the sentence of 6 months' imprisonment imposed for the offence of unlawful damage was excessive. The maximum penalty for the offence is imprisonment for 12 months and a fine of $12,000. There is, of course, a wide range of conduct that can result in such a charge. As the sentences for such an extensive range of conduct must fall within a limited sentencing range of up to 12 months, minor variations in sentence might result from the commission of offences quite dissimilar in seriousness.

60 The circumstances of the commission of this offence indicate that it was no mere minor damage to property offence. Quite early in the morning of New Year's Day, the appellant, whilst significantly intoxicated, went to the home of an ex-partner who had custody of their child and starting kicking the glass sliding door in. Not surprisingly, it cracked. She then started banging on the lounge room windows and making moaning noises. She bashed on the window long enough and hard enough for the glass to smash. It appears that she only stopped when she injured herself by falling through the glass. As might be expected, this conduct woke up the appellant's ex-partner. One can well imagine how frightening it would be for any person to suddenly become aware that someone was smashing or trying to smash windows and doors of one's home or perhaps even trying to break in. The impact on a young child would necessarily be even more terrifying. In my view, the seriousness of this offence lies not simply in the damage caused, but in these surrounding circumstances which would also lead to concern or even fear about what was happening and, no doubt, embarrassment because of the relationship with, and the condition of, the perpetrator.

61 At the hearing before the Magistrate, no truly mitigating circumstances were presented to the Court, other than the plea of guilty. In submissions made on behalf of the appellant, it was said that the appellant was intoxicated and had attended at her former partner's house in the hope of seeing her 2-year-old daughter whom she had not seen for six months. In my view, neither of those factors mitigate the appellant's conduct. The appellant has a self-inflicted alcohol dependence of longstanding, the consequences of which are well known to her. Her voluntary ingestion of alcohol provides no excuse for her conduct and is not a matter which should operate to reduce the sentence imposed on her.

62 In Damiani v The State of Western Australia (2006) 164 A Crim R 358, Roberts-Smith JA noted (at [2]) that intoxication may explain an offence, but ordinarily will not mitigate penalty, save where the original addiction did not involve a free choice. Relying on the decision of the Court of Appeal of Queensland in R v Rosenberger (1994) 76 A Crim R 1 at 3, his Honour stated that an offender generally cannot expect a reduction in sentence because they committed the offence whilst intoxicated. The rationale behind that statement of principle was described in these terms (at [3]):

"Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 383; Douglas v The Queen (1995) 56 FCR 465, at 470; Talbot v The Queen (1992) 34 FCR 100, 105-106; Hinchliffe v The Queen [2001] WASCA 15."

63 It is possible that the appellant's stated desire to see her daughter was the catalyst for attending at her ex-partner's home but it does not make her conduct less serious. Indeed, as I have noted above, in my view it is part of the appellant's tendency to give the appearance of good intentions to conduct which puts her in a bad light. It is also consistent with the appellant's habit of attributing responsibility for her actions to others.

64 In the particulars to this ground of appeal, considerable emphasis was placed on the fact that this was the appellant's first offence of unlawful damage and it was submitted that first offences are usually dealt with by way of a fine. I believe that this submission displays a misunderstanding of the reasons for dealing more leniently with a person who offends for the first time or a person who commits an offence which is out of character for that person, as evidenced by a lack of relevant convictions. Where a person offends for the first time, that person will normally be dealt with more leniently than a person who has a history of offending because the prospects of rehabilitation are greater with a person who has never before offended: see Koushappis v The Queen [2001] WASCA 18 at [11] per Kennedy J. Similarly, where a person commits an offence wholly unlike anything previously committed, there is some basis to conclude that the offence is out of character and, again, there are greater prospects of deterring the person from venturing further into offending of that type: Koushappis v The Queen (supra) per Kennedy J at [13],

65 However, where as in this case the catalyst for the offending is a continuing condition which can manifest itself in many different types of offending, generally speaking there is no greater prospect of rehabilitation where the person commits a new type of offence than if the person repeats the same offence. In the appellant's case, she continues to drink to excess which no doubt contributes to her offending but her prospects of rehabilitation remain the same unless and until she chooses to address that problem.

66 The only mitigating factor then was the fact of the plea of guilty. In circumstances where there is some cause to consider whether that plea does indeed reflect remorse and acceptance of responsibility, the reduction for that factor would not be significant.

67 Having considered all these factors it was, in my view, open to the Court to conclude that no disposition other than a term of imprisonment was appropriate and that, when all the circumstances of the commission of the offence are taken into account, the term should be towards the upper end of the range. In the circumstances, I am not persuaded that the penalty imposed by the Magistrate for this offence was disproportionate to its gravity, even taking into account a reasonable deduction for the plea of guilty. I would dismiss this ground of appeal.

68 In this ground, the appellant alleges that the sentence of imprisonment imposed for the offence of reckless driving was manifestly excessive. Reliance was again placed on the fact that this was the appellant's first conviction for an offence of this type, having no prior conviction for reckless, careless or dangerous driving. It is also asserted that the appellant's driving did not put the safety of other road users at risk and was at the medium to lower end of the scale for offences of this type.

69 Under s 60(3)(a) of the RTA the maximum penalty for a first offence of reckless driving is 9 months' imprisonment or a fine of $1000 and disqualification for a period of not less than 6 months.

70 Counsel for the respondent submitted that, when considering the maximum available penalty for this offence, cl 2(1) of Sch 1 ("the transitional provisions") of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Amendment Act") does not apply. The transitional provisions provide that a Court sentencing an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the term that would have been imposed under the law as it stood prior to the Amendment Act. However, cl 2(5)(a) of the transitional provisions states that this requirement does not apply if the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced. The penalty for reckless driving was increased from 6 months' imprisonment to 9 months' imprisonment by s 92(2) of the Amendment Act and came into effect on 15 May 2004.

71 It is submitted by counsel for the respondent, therefore, that the exercise required by cl 2 of the transitional provisions need not be carried out with respect to offences under s 60 RTA. Some support for that construction is said to be found in the judgment of McLure JA in Damiani v The State of Western Australia (supra) at [50] where the error was said to be a failure to take into account the transitional provisions and her Honour reduced the sentence for the assault charge but not the sentence for damage or reckless driving. I am not persuaded that the decision not to reduce those sentences supports the proposition on which the respondent relies. The exercise being carried out by McLure JA was resentencing after having found that the Magistrate fell into error. In doing so, her Honour was seeking to impose a total sentence reflecting a course of conduct involving a number of different offences. There are various factors involved in that exercise, any one of which could explain the decision not to alter the sentences for the offences of damage and reckless driving. Further, the respondent's argument applies to the offence of reckless driving but not to the offence of damage, the sentence for which was also unchanged.

72 Nevertheless, I consider the respondent's submission with respect to the application of the transitional provisions to the offence of reckless driving to be soundly based. The penalty for reckless driving was indeed increased and that increase not only took place after the new provisions commenced but were a specific part of the Amendment Act, although coming into operation at a later time, presumably in order to fall within cl 2(5)(a) of the transitional provisions. Further, the fact that the penalty was increased by one-third is also consistent with the transitional provisions.

73 The respondent further submits that s 60(1b) of the RTA was inserted by s 8 of the Road Traffic Amendment (Impounding and Confiscation of Vehicles Act) 2004, which commenced on 4 September 2004 and hence s 60 was by that means also amended since the transitional provisions commenced. This particular submission I am unable to accept. Section 60(1b) RTA provides that a person who drives a motor vehicle at a speed exceeding the speed limit by 45 kilometres per hour or more commits an offence. Clause 2(5)(a) of Sch 1 provides that cl 2 does not apply only if the statutory penalty for the offence has been amended. In the latter example relied upon by the respondent, while the description of the conduct constituting an offence under the section has been altered the statutory penalty has not been amended.

74 The appellant's proposition that the sentence of 6 months' imprisonment was disproportionate to the gravity of the offence considered in light of its objective circumstances requires a consideration of those circumstances. The facts are set out above, but it is important to consider that the appellant was already driving at a speed of 128 kilometres per hour in a 90-kilometre zone when she was detected by police who activated their emergency lights. At that point the appellant was driving at approximately 38 kilometres per hour over the speed limit, certainly an excessive speed but not one which, under s 60(1b) is deemed to constitute reckless driving. Her reaction at that point was not to reduce speed and face the consequences but to accelerate away. The speeds achieved were 140 and then 150 kilometres per hour, speeds which were maintained even when travelling through a 70 kilometres per hour zone. At one point, the appellant rapidly approached another vehicle from behind but then pulled off the carriageway and continued east on Bussell Highway, Broadwater.

75 The appellant's speed varied only when she slowed to turn into the gravel entry to her property but her vehicle then slid sideways as she accelerated away down the narrow dirt track. When the appellant made a sharp right turn she almost lost control of the vehicle before continuing along the dirt road and stopping near the front of her house. At this point, instead of ending the chase as she should have, when the police got out of their vehicle to approach the appellant, she again accelerated, travelling a short distance to the front door of her house. The police ran back to their vehicle. The appellant then reversed backwards to the front of the police vehicle, locked her door before driving forwards and stopping near her front door where she was when police removed her from her vehicle.

76 Although the time period was short because of the high speed, the distance travelled was six and a half kilometres. The roadway was sometimes wet from reticulation. The appellant could not have been unaware of being chased by the police because they activated both lights and sirens. The appellant's proposition that she did not hear the police because she is "half deaf" was not referred to by counsel at the hearing which no doubts reflects the inherent implausibility of the suggestion. It is also inconsistent with some of the appellant's conduct such as reversing into the police car. The same comment can be made with respect to the appellant's proposition that she thought she was travelling at 90 kilometres per hour most of the way. The fact is, the appellant not only made no effort to stop, at one point she actually accelerated in reverse towards the police vehicle.

77 One basis upon which the appellant alleges that the sentence for this offence is excessive, is the proposition that this was the appellant's first conviction for the offence of reckless driving. I need do no more than repeat the comments I made on this issue with respect to the offence of unlawful damage. The appellant's problem with alcohol undoubtedly also influenced the commission of this offence. Further, although the appellant has no prior convictions for reckless driving, she has many for alcohol related driving offences. As noted above, on my calculation the offender had at least eight previous convictions for driving under suspension, of which only two related to the accumulation of fines and she had five convictions for excess 0.08 per cent offences. The appellant's criminal history also reveals convictions for other offences relating to her driving; for example, driving an unlicensed vehicle, exceeding the speed limit by 20 to 29 kilometres per hour and wilfully misleading police officers. In these circumstances, the fact that this is a first conviction for reckless driving should not be taken as mitigating the appellant's conduct. Indeed, the fact that the appellant's alcohol induced offending has taken a new direction is more a matter of concern than mitigation. At the very least, it shows a continuing attitude of disobedience of the law and a failure to address the problem that underlies the offending.

78 In my view, in the circumstance of this offence and this offender, the only relevance of the fact that this is the first offence of reckless driving committed by the appellant is that the upper end of the available sentencing range is 9 months: see s 60(3)(a) RTA.

79 The proposition that the appellant's conduct did not put the safety of other road users at risk cannot go unanswered. The fact that no one was injured was, in colloquial terms, more good luck than good management. The appellant's driving in no way took into account the fact that there might be other vehicles on the road; for example, the appellant was seen to rapidly approach another vehicle from behind before veering off to take another road. The appellant did not reduce her speed because of that vehicle or at any other point, despite having no way of knowing whether there would be any other vehicle on the road. The risk to other road users is based on the appellant's conduct, not of the outcome of the incident. It does not follow from the fact that, on this particular occasion, there was no other vehicle on the road that the appellant's conduct was without risk. I believe the risk to other road users arising from the appellant's driving was obvious. For six and a half kilometres the appellant drove at excessive speeds when at the time she was under the influence of alcohol and hence was not in an appropriate situation or condition to deal with the exigencies of driving a vehicle at high speed on a public road.

80 The explanation relied on by the appellant was that the offence occurred when the appellant was driving home after staying at a friend's place and consuming alcohol as a result of being very upset about her 8-week-old son being apprehended by the Department. I have already referred to the fact that the appellant's plea of guilty appears to reflect less than complete acceptance on her part of responsibility for what occurred, a factor which the Magistrate was entitled to take into account. Further, even accepting that the appellant's desire for company and comfort was caused or contributed to by her depression and the events on that day, and that her resistance was thereby undermined, ultimately the appellant was aware of the consequences of her drinking and further there was no explanation provided for why, when she had been drinking for an entire afternoon she would drive home or anywhere else.

81 I accept the proposition put on behalf of the respondent that it is difficult to discern from the authorities a tariff or range of sentences for offences of reckless driving. Magistrates regularly deal with a wide variety of driving offences as well as a wide variety of circumstances in which such offences are committed. In that regard, Magistrates are generally in the best position to judge the relative culpability of offenders: Forbes v Durant [1999] WASCA 85 at [15]. Nevertheless, it is the responsibility of this Court to consider whether the sentence imposed was manifestly excessive when all relevant factors are considered, including the plea of guilty and the sentences imposed on others for the same offence.

82 In this case, the term imposed was 6 months out of a potential 9-month maximum, if the seriousness of the offence was such that only imprisonment could be justified. It is commonly said that one can always imagine a more serious example of a particular type of offence but it is difficult to envisage many matters of greater seriousness which do not also involve other charges. Here, the conduct which attracted a further charge was being under the influence of alcohol, the reading being 0.1380 per cent an offence for which she received only a fine despite being liable to a maximum sentence of 12 months' imprisonment.

83 I consider this offence to be quite a serious example of reckless driving and certainly not towards the middle or lower end of the range. The nature of the driving worsened when the appellant became aware that she was to be apprehended by police. Even counsel who appeared for the appellant on the plea of guilty described the circumstances as "quite horrendous". On that basis, issues of punishment and general and specific deterrence become of considerable relative importance, particularly so in view of the appellant's increasing record of driving related offences. I have no difficulty in concluding that the Magistrate was correct in determining that imprisonment was the only option. In my view, it simply cannot be said that the penalty imposed was disproportionate to the gravity of the offence considered in light of its objective circumstances. Taking into account the plea of guilty, I consider the sentence imposed to be well within a sound discretionary range and not to manifest error.

84 In ground 4, the appellant alleges that, in passing sentence, the Magistrate placed inordinate weight on the appellant's prior record of convictions. In ground 5, the allegation is that the sentences imposed marked the Court's disapproval of the appellant's failure to stop reoffending . It is convenient to deal with these two grounds together because they essentially address the same issue, the impact of the appellant's criminal history on the sentencing process.

85 The appellant alleges that the sentences imposed were disproportionate to the criminality displayed by the appellant and resulted from placing undue weight on the appellant's background of offending and insufficient weight on the appellant's personal circumstances, in particular her post-natal depression and the trauma of having her child taken away. It is said on the appellant's behalf that people in extremities should be given more lee-way and that it was important to consider that the appellant had not caused accident or injury. As to that last point, such a result would have been reflected in another charge and an increased penalty range. The absence of injury or damage does not decrease the appropriate penalty for the charges the appellant was facing. Further, as noted elsewhere, the fact that there was no accident was a result of the good fortune of there being no other cars on the road.

86 After reciting the facts of each offence the prosecutor made the comment that "the appellant must be on the brink of Bandyup". The Magistrate's response was this: "Well, I think she's passed the brink." Counsel for the appellant submitted that this comment, made as it was before anything had been said on behalf of the appellant, showed a firm intention to imprison the appellant and was a position from which the Magistrate was unable or unwilling to move. Once the plea in mitigation commenced, counsel for the appellant noted that the Department wanted the appellant out of the area so she would be unable to take the child. The Magistrate responded by saying: "Well I might be just the man you need ... I can accommodate her." Counsel also said: "So, your Honour, I know that she's on the brink of custodial ... " to which the Magistrate replied: "Well, I don't know that she's on the brink; I think she's well and truly in there because, as I said, she's got eight previous convictions for driving under suspension." Later in the plea in mitigation, counsel prefaced a submission by saying, "If a custodial sentence is being considered" and the Magistrate responded by saying, "It's not only being considered, its [sic] going to happen."

87 On behalf of the appellant, emphasis is placed on other comments made by the Magistrate in the course of the plea in mitigation. In particular, counsel referred to the following statement made immediately after commencement of the plea in mitigation and before anything was said about the offences:

"Well, you'll have to excuse me for being cynical but she had a record, a considerable record prior to that, so that offence of 2 November 1999 (manslaughter) and the prison conviction is just all part of the ongoing process of blatant disregard for the law by Ms McDonald."

88 It is certainly the case that the Magistrate was forthright in his comments and that he did express a view on the appropriate disposition from the outset and prior to any matter being raised on behalf of the appellant. The appellant's submission is that these factors indicate that the Magistrate had a pre-determined view and did not properly consider matters personal to the appellant. I am not persuaded that this is so. A judicial officer does not fall into error simply by expressing a view on the available information. It does not automatically follow that the view may not be subject to revision as more information is provided. The advantage of expressing an initial view is that counsel can respond to it specifically and the offender can appreciate the seriousness of the position he or she is in. Of course, the Magistrate must, in appropriate circumstances, be prepared to consider and give effect to information which might militate against the provisionally held view.

89 It may have been preferable for the Magistrate to keep his thoughts to himself until the conclusion of the plea in mitigation or not to state them so forcefully. Nevertheless, error occurs only where the view taken is not justified or where some factor which may alter that view is not given appropriate consideration.

90 When the Magistrate's comments are read in context, it is apparent that the provisional conclusion that imprisonment was the only appropriate disposition was based on the appellant's criminal record, the ways in which she had previously been dealt with by the court, in particular the fact that all of the previous non-custodial sentences had had no deterrent effect, and also by what the Magistrate considered to be the appellant's failure to accept responsibility for her actions.

91 The appellant's criminal history is outlined above. Counsel for the appellant disputed that it was considerable. He preferred to describe it as unfortunate, although he conceded that 1996 "certainly was a very bad year". In my view, whatever descriptive term is used, the appellant's record is of such a nature that a Magistrate could properly conclude that the sentences previously imposed, all of which were non-custodial, had not had any or any sufficiently rehabilitative or deterrent effect. Even a term of suspended imprisonment had not deterred the appellant from reoffending. In the circumstances the Court could have no confidence that a further non-custodial disposition would have any deterrent effect. On that basis, I believe that the Magistrate's comments, although strong, were an accurate reflection of the nature of the offences and the appellant's criminal history.

92 Of course, in order to determine whether, as alleged, the Magistrate placed too much weight on the appellant's prior record, it is necessary to consider the matters put on behalf of the appellant in mitigation and also to consider the way in which they were dealt with by the Magistrate. The factors on which the appellant relied as justifying a non-custodial disposition or, if a sentence of imprisonment is found to be appropriate, a lesser sentence, are the fact that the appellant's child had been taken into care and that she was suffering from post-natal depression.

93 The Magistrate expressed the view that the appellant was blaming others for her offending and that the circumstances in which her child was taken into care 12 hours earlier and the fact that the appellant suffered from post-natal depression could not possibly be an excuse for her conduct. Counsel for the appellant submitted that the Magistrate dismissed these factors as irrelevant. I am not persuaded that the Magistrate was making a general statement on the impact of emotional problems and mental illness on the sentencing process. I do not take the Magistrate to mean that such circumstances could never provide an excuse, simply that in the circumstances of this accused they did not do so.

94 Earlier in these reasons, I have dealt with the conclusions to be drawn from the appellant's explanations for her offending and from her interjection during the plea in mitigation to the effect that she would not have committed the offences if her child had not been taken away. I have found that the Magistrate was justified in his conclusion that the appellant failed to accept responsibility for her actions and had a propensity to blame others. In particular, the Magistrate's involvement with the Department's application made him privy to additional material which clearly had an impact on his perception. At one point in the plea in mitigation, the Magistrate made the following observation:

"I know all about her; I know about it from what you've told me and what I learned this morning. I know enough about her. And all she's doing is trying to hide behind the emotional trauma and she just reckons she can do what she likes and the court will do nothing about it. She's wrong."

95 Without in any way undermining the impact on a person of having their child taken away, a close analysis of the explanation offered by the appellant does not support a conclusion that she was so overwhelmed by that trauma and so disturbed by post-natal depression that she instantly reacted in a way in which she would not otherwise do. According to counsel, the appellant had left her child with her mother because she was struggling to cope. When she was told that the Department had taken the child the appellant had left work and gone home. She said she needed to get out of the house to stop feeling so bad so she went to a girlfriend's house for comfort and support. She said:

"Unfortunately my friend offered me alcohol. Because I was feeling so depressed, I sought solace in the company of my girlfriend and in the drinking of alcohol. I stayed at my friend's house until the early hours of 13 February 2007 when I decided to drive home."

96 Whilst the circumstances may have created the desire to go out to a girlfriend's place and reduced the appellant's resistance to drinking, the appellant was well aware of her problem with alcohol and the consequences should she drink and drive. Drinking to excess and then driving was something that the appellant had done repeatedly in the past, irrespective of her emotional state.

97 Further, despite being given the benefit of non-custodial sentences by the Courts on a number of occasions, the appellant had not changed that aspect of her character nor had she been deterred from reoffending. In those circumstances, issues such as personal and general deterrence must be given greater weight than rehabilitation of the offender.

98 In all the circumstances, I believe the Magistrate was justified in forming the view he did that the appellant continually failed to accept responsibility for her actions and that her conduct could not be excused by the events of that morning because her offending was caused by her drinking which she did voluntarily, well knowing the potential consequences. In terms of mitigation the Magistrate was obliged to give some degree of credit for the plea of guilty but, in my view, there was little to mitigate the appellant's conduct and much in the circumstances of the offences and her history of offending to call for a deterrent penalty of imprisonment. 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: Findlay v The State of Western Australia [2007] WASC 61 per Martin CJ at [23]. It is also the case 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: per Martin CJ at [23].

99 In written submissions the appellant referred the Court to the decision of Heenan J in Smith v Pritchard [2003] WASCA 6 at [13] - [14] where his Honour restated the principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 - 478 that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. Counsel for the appellant also referred the Court to McGregor v Connor [2001] WASCA 187 and to McLure J's reliance (at [23]) on the principle that the sentence that is considered to be proportionate to the crime can never be increased in order to mark the Court's disapproval of subsequent conduct: see R v Wroblewski (1999) 105 A Crim R 129 at 130 and 134. Despite the Magistrate's strong words, I am not persuaded that the sentences imposed breached either principle.

101 The appellant alleges that the Magistrate fell into error in failing to order pre-sentence and psychological reports when requested by the appellant's counsel.

102 When the Magistrate made it clear that he was intending to impose a custodial sentence, counsel for the appellant requested that a pre-sentence report or a psychological report be obtained. The Magistrate's response was this: "Well, I'll get a pre-sentence report, if you like, but she'll stay in custody until I get it." Counsel pointed out that the appellant was currently employed and would lose her job if she were kept in custody. However, the Magistrate reminded counsel that the Court had previously been advised that the appellant intended leaving for New Zealand where her father lives and leaving the child in her mother's custody. At that point, counsel for the respondent made the request for any sentence imposed to be suspended and no further submission or reference was made on behalf of the appellant for a pre-sentence report or a psychological report to be obtained.

103 Under cl 4 of Pt C of Sch 1 of the Bail Act 1982 (WA), in deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced, the judicial officer must consider the following two circumstances:

(a) there is a strong likelihood that a non-custodial sentence will be imposed; or

(b) there are exceptional reasons why the defendant should not be kept in custody.

104 In the case of a defendant waiting to be sentenced, the judicial officer must only grant bail where one of these two circumstances exists and it is proper to do so having regard to cl 1 and cl 3. It would appear from the transcript, and the failure of counsel for the appellant to respond to the Magistrate's comment, that neither of the two circumstances existed with respect to the appellant. Therefore, the Magistrate's statement that the appellant would be kept in custody if an adjournment was required in order to obtain a pre-sentence or psychological report was in accordance with the terms of the Bail Act 1982.

105 Counsel for the appellant submitted that, in view of the circumstances of the offences, together with the Magistrate being informed that when the traffic offences occurred the appellant was suffering from post-natal depression, it was inappropriate for the Magistrate not to order pre-sentence and psychological reports before proceeding to sentence.

106 In Vagh v The State of Western Australia (2007) WASCA 17, Roberts-Smith JA noted (at [56]) that the lack of a pre-sentence report cannot itself be a discrete ground of appeal. However, it may reinforce a submission that the sentencing Judge was not sufficiently advised of the facts: see also Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994. Where an offender is legally represented, it is the obligation of counsel to place circumstances of mitigation before the Court: Angwin v The Queen, unreported; CCA Sct of WA; Library No 920028; 13 February 1992 at 5. In this case, counsel made the submission that the appellant's conduct was mitigated by the circumstances that she suffered from post-natal depression and that her child had been taken away from her on the day the offences, other than the unlawful damage offence, occurred. Being advised that the appellant would stay in prison for the period of a pre-sentence report, counsel declined to press the request for reports. The Magistrate did not dispute that the appellant suffered post-natal depression and was well aware of the circumstances in which the appellant's child had been taken into care. Therefore, the only additional information that could be provided to him was the opinion of a psychologist as to the effect, if any, on the appellant of those circumstances. The position taken by the Magistrate, and one which I consider was open to him, was that the appellant was relying on those circumstances as an excuse for her drinking. However, because of her history of offending, the appellant was well aware of the consequences of drinking, and because of the seriousness of the offences committed by her, in view of the potential danger to the community, the appellant's personal circumstances did not outweigh the need for a deterrent penalty.

107 Whilst I am of the view that it is almost always preferable to obtain a pre-sentence report or psychological report, I am not persuaded that there is any substance in this ground of appeal.

108 The appellant argues that the Magistrate failed to give meaningful consideration to suspending the sentences of imprisonment.

109 Section 6 of the Sentencing Act 1995 provides that a Court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Under s 76 of the Sentencing Act 1995 a Court that sentences an offender to a term of imprisonment may order that the whole of the term be suspended. It is well established that the option of suspended imprisonment is always open and all relevant factors including mitigating factors such as a plea of guilty must be revisited before a term of immediate imprisonment is imposed: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 317. In Chinnery v Hansen [2001] WASCA 349, Hasluck J, with respect to the Magistrate's statement that he did not believe that a suspended period of imprisonment was the appropriate penalty, which was the only comment made on the subject, concluded (at [64]) that it was not clear whether the Magistrate was putting emphasis on the seriousness of the offence or upon the fact that the offender had arguably been treated too leniently on previous occasions and no attempt had been made to strike a balance between such considerations and the various mitigating factors.

110 In this case, when counsel for the appellant inquired whether the Magistrate would consider suspending the sentence of imprisonment he foreshadowed, the Magistrate gave the following response:

"No, because the system's been going too easy on her for too long. I mean, the last time, as I said, it went easy on her for driving under suspension for the fifth time, and an 08 charge for the fourth time, it went easy on her and gave her a community based order for nine months, to avoid her prospect of having to pay fines. That's the thanks the system gets: she goes out and does it - only this time it's a lot worse. Not only is she driving under suspension - not only is she driving under the influence of a reading of one three eight oh, this time she's driving at 150 kilometres per hour in a 70 kilometre per hour zone."

111 When the appellant interjected with a comment about having emotional damage the Magistrate made this further comment:

"Don't keep hiding behind your emotional damage because a lot of people have emotional damage who aren't driving in the manner that you're driving; and when you were driving in this manner, you could have killed someone and it's no consolation to anybody that the driver of the vehicle was suffering emotional trauma. A lot of people suffer emotional trauma and they don't go and get drunk and drive in that manner. Just stop hiding behind all those things in your life and start being responsible. How old are you now?"

112 Having passed sentence, the Magistrate was reminded by the prosecutor to state whether he had considered the option of suspending the terms of imprisonment. The Magistrate responded by saying that he had considered the option of suspending the sentence and thought that it was not appropriate to suspend it.

113 As I noted before, it is the case that the Magistrate spoke in strong terms in addressing this and other issues. It is unnecessary for me to pass comment on whether the proposition being put by the Magistrate should have been expressed differently. The Magistrate not only considered the issue of suspended imprisonment but provided reasons for the decision that he made. It is apparent that his overriding concern was the fact that the appellant had repeatedly committed offences of the nature of those driving offences with which he was dealing. The Magistrate also emphasised the fact that the courts had dealt leniently with the appellant in the past and yet she continued to offend. Significantly, from the Magistrate's perspective, the appellant's offending had escalated to include driving recklessly whilst intoxicated. Further, at the very time that the Magistrate was considering the issue of suspended imprisonment, the appellant herself drew to the Magistrate's attention a personal matter relevant to that issue; the fact that she was suffering an emotional trauma. At that point, the Magistrate reiterated the point he made on a number of occasions during the plea in mitigation and that was that the appellant's failure to accept responsibility for her actions. He did not consider her emotional trauma to be an adequate explanation for drinking and then driving in so serious a manner that she could have injured someone.

114 In my view, there is no substance to the appellant's submission that the Magistrate erred by not revisiting all the relevant circumstances of the offences and the personal circumstances of the appellant before deciding not to suspend the sentence of imprisonment.

115 In this case the appellant had been fined, released without conviction, given a community based order and an intensive supervision order which she breached. After increasing the severity of sentences imposed without having any impact on the appellant's offending, the Court had also reverted to more lenient sentences, all without the desired result of deterring the appellant from reoffending . The appellant had on all but one occasion established that she was able to refrain from offending for the period of the court order. However, that is only one of the intended outcomes of sentences of that type. The more important outcome is for the appellant to cease offending. No sentence passed to that point in time had achieved that result. It is also significant to note that, in relation to the conviction for manslaughter, the appellant had been sentenced to a term of suspended imprisonment. Again, although it appears she was able to be of good behaviour for the relevant period of suspension, her driving offences have continued and have escalated. In those circumstances, I am not able to conclude that the Magistrate fell into error either in failing to give any meaningful consideration to a suspended sentence or that he erred in failing to impose a suspended sentence.

117 The appellant alleges in this ground of appeal that, when the offences are viewed in their entirety and regard is given to the matters personal to the appellant, the aggregate sentence of 15 months' imprisonment was disproportionate to the overall criminality of the offences. Although not precise grounds of appeal, in submissions the appellant alleged that the penalty imposed for the offence of driving whilst under suspension was excessive and that the sentences for the offence of reckless driving and of driving whilst under suspension should have been ordered to be served concurrently as the offences were part of the one course of conduct.

118 In support of this ground, counsel for the appellant noted that the appellant had never been sentenced to a term of imprisonment before. That is not strictly correct. The appellant was in fact sentenced to imprisonment for the offence of manslaughter although the sentence was suspended and never served. Essentially then the proposition is that the appellant has never before been required to serve a term of imprisonment. In that regard, I have already addressed the issue of whether it was appropriate to suspend the terms for the offences the subject of this appeal and determined that no error was made in imposing terms of imprisonment to be served.

119 Having upheld the sentences for the offences of damage and reckless driving, the only remaining issues are whether the sentence for the offence of driving under suspension was outside a sound discretionary range and whether the total period of imprisonment imposed was manifestly excessive keeping in mind the extent of the appellant's offending.

120 For the offence of driving under suspension, the Magistrate imposed a sentence of 9 months' imprisonment. Counsel maintains that it was the appellant's sixth conviction for such an offence. As noted above, on my calculation it was the eighth conviction. The penalty for driving whilst under suspension is a fine of between $1000 and $4000 and imprisonment for not more than 18 months. Taking into account the effect of the transitional provisions, the upper sentencing limit was 12 months: see Mason v Morrison [2004] WASCA 181 at [24].

121 The appellant submits that the general range of sentences imposed for offences of driving under suspension where there is a prior record of driving whilst subject to Court imposed suspension is between 2 and 6 months. Reliance is place on the decision of Martin CJ in Kerr v Cowie [2006] WASC 193 at [23] and of Le Miere J in Anderson v Heath [2005] WASC 253 at [9]. In Kerr v Cowie (supra) Martin CJ stated (at [23]) that he took into account the sentencing range indicated in the decision of Le Miere J in the case of Anderson v Heath (supra). His Honour also said that he took into account "the various cases identified by counsel for the appellant which suggest that in cases of this kind a range of between two to six months is the usual range imposed". However, Martin CJ qualified that statement by observing that it was plain from the decision in Mason v Morrison (supra) that that range can be exceeded when the circumstances of the offence justify it. His Honour expressed the view that when regard is had to the effect of the plea of guilty, he considered that the maximum reserved for the worst possible case of this kind after a plea of guilty would have been in the vicinity of 9 months' imprisonment. Of course, the accuracy of that statement depends on whether it would be appropriate to allow a reduction of one-third for the plea of guilty; an issue addressed above and determined not to be appropriate in the circumstances of this case.

122 The range indicated by Le Miere J in Anderson v Heath (supra) was expressed in these terms (at [9]):

"Counsel for the respondents usefully referred to authorities in relation to the offence of driving whilst under suspension. The authorities established a range of 2 to 6 months imprisonment as an appropriate disposition in most cases under the old sentencing regime which would equate to a range of 6 weeks to 4 months under the new sentencing regime."

123 A similar exercise was carried out by counsel in this case and, in my view, the results do not reflect a range consistent with that identified by Le Miere J in Anderson v Heath (supra). Prior to the changes to the Sentencing Act 1995, where an offender has a significant number of previous convictions for driving under suspension, the sentences imposed ranged between 6 to 12 months, although there was one sentence of 4 months and one of 5 months. The cases heard on appeal after the transitional provisions came into effect cover an even wider range of penalties of anything between 4 and 12 months, although some terms were suspended.

124 I question the merits of carrying out such an exercise when an appeal of this type is heard. Indeed, I also found I was not much assisted by being referred to a large number of cases where offenders with vastly different personal circumstances committed offences of the same type but in a wide variety of circumstances. In my view, a snapshot of cases subject to appeal, taken at a particular point in time and covering varied circumstances, has the potential to present an inaccurate picture of the usual range of sentences for that type of offending. For one thing, a sentence imposed as a result of a successful Crown appeal would not identify an appropriate sentence at first instance. Further, the fact that some sentences are imposed for one of a group of offences committed as part of the same course of conduct may result in a sentence being altered to comply with the totality principle. In Tulloh v The Queen [2004] WASCA 169, a number of decisions of the Court of Criminal Appeal were relied upon by the appellant to suggest that the sentence imposed by the sentencing Judge was excessive. Miller J made the following comment in relation to that approach (at [42]):

"The cases referred to by counsel for the applicant and Stapleton v The Queen [[2004] WASCA 130] do no more than confirm the cautionary observation of Kennedy J in Allen v The Queen [unreported; CCA SCt of WA; Library No 950215; 27 April 1995] that although examples of cases provide some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care.

125 In my respectful opinion, the better approach is to consider statements of principle and apply them to the facts of the particular case, keeping in mind the available penalty range provided for in the legislation and taking into account the transitional provisions where appropriate.

126 For the reasons to which I have referred, I am not persuaded that there is a usual range of sentences from 2 to 6 months for driving under suspension with respect to repeat offenders. In Mason v Morrison (supra) Miller J considered the issue of suspending a term of imprisonment for an offender who had 11 prior convictions for driving under suspension and numerous convictions for related offences such as excess 0.08 per cent. The respondent had pleaded guilty and there were additional mitigating factors. It was also a Crown appeal and subject to the usual constraints on an appeal of that type: see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 310; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299. Despite these factors, when Miller J came to exercise the sentencing discretion anew he imposed sentences of imprisonment for 9 months in relation to each charge, to be served concurrently. There are other examples of sentences of this magnitude being passed on offenders in similar circumstances. I accept that these examples are no more capable of determining a valid range of sentences for offences of driving under suspension or excess 0.08 per cent than those on which the appellant relies. They are referred to only to show that the sentence imposed in this case was not so far beyond other sentences imposed as to manifest error. Where, as outlined above, the appellant's plea of guilty cannot be regarded as an unreserved acceptance of responsibility, and where there were no other mitigating factors and a number of factors which made the offence a serious example of its type, I am unable to conclude that a sentence of 9 months' imprisonment manifests error.

127 I turn now to consider the issue of totality. Although this issue was not specifically mentioned by the Magistrate, the appellant does not allege that the Magistrate failed to consider this principle, simply that the aggregate sentence of 15 months' imprisonment imposed breached the principle in that the sentence was disproportionate to the overall criminality of the offences. In any event, as Malcolm CJ observed in Nevermann (1989) 43 A Crim R 347 at 350, it is not necessary for a full and detailed statement of reasons to be given in every case and it would be impracticable in a busy court such as the Magistrates Court.

128 The totality principle requires a judicial officer who is sentencing an offender for several offences to ensure that the total sum of the sentences is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (supra) at 307 - 308 per McHugh J. The High Court has held that the proper sentencing procedure is to first determine the appropriate sentence for each offence and then turn to the question of whether the sentence should be made cumulative upon or concurrent with any other existing sentence being served by the offender, and consider the question of totality of sentence: Pearce v The Queen (1998) 194 CLR 610 at 623 - 624 per McHugh, Hayne and Callinan JJ; Mill v The Queen (1988) 166 CLR 59; Thompson v Murray [2004] WASCA 168 at [29] per Barker J. Therefore, when applying the totality principle it might be necessary to depart from the principles which determine whether a sentence is to be served cumulative on, or concurrent with, another sentence.

129 The offence of unlawful damage was undoubtedly another example of the appellant's difficulty in abiding by the law when intoxicated. However, it was wholly separated in time and place from, and was in no way part of, the course of conduct which resulted in the balance of the charges. For that reason, the term imposed for that offence would in the normal course be ordered to be served cumulatively on any of the terms imposed for the offences which took place on 13 February 2007. That was not, however, the way in which the matter was approached by the Magistrate.

130 In relation to the traffic convictions, the Magistrate ordered that the 6 months' imprisonment for reckless driving be served cumulatively on the sentence of 9 months' imprisonment for driving under suspension. The 6-month sentence for unlawful damage was ordered to be served concurrently. The total effective sentence was 15 months' imprisonment and the appellant was made eligible for parole. In ordering that the sentences for reckless driving be served cumulatively on the sentence for driving whilst under suspension, the only comment made by the Magistrate, although immediately after imposing a fine for failing to stop when called upon, was this:

"When she was driving in this manner, when the police come behind her and told her to stop, she had the opportunity then to bring it all to an end but that's when she sped up to an even greater rate".

131 In my view, it is clear that the Magistrate considered that at this point the appellant engaged in conduct which went beyond simply driving whilst disqualified and under the influence of alcohol and was deserving of additional punishment. Counsel for the appellant relied on the "one transaction rule" which states that where a number of offences are committed as part of one multi-faceted course of criminal conduct, the sentences should be served concurrently. In R Queen v Faithful [2004] WASCA 39 at [28] McLure J noted the limitations of what is, in fact, no more than a general proposition:

"However, on one matter there is no uncertainty. It is not a principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode: R v White [2002] WASCA 112; Ruane v R (1979) 1 A Crim R 284. It is a general rule, or what has been described as a 'good working rule' (Ruane) that when a number of offences arise out of the one transaction or continuing episode any terms of imprisonment are to be made concurrent. However, 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: White (supra). If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially concurrent rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63. In my assessment, this approach to the one transaction rule is consistent with the statements of principle in Pearce v The Queen (supra). Although the offences in that case were quite clearly part of one transaction or a continuing episode for the purposes of the one transaction rule, wholly concurrent terms did (or may) not reflect the total criminality of the conduct."

132 In my view, if one compares the conduct of a person who drives under suspension and intoxicated with a person who, in addition drives at high speeds on public roads over a number of kilometres whilst being chased by the police, the total criminality of the second example is obviously much greater than that of the first. That was clearly the view of the Magistrate when he ordered the accumulation of the sentences for driving under suspension and reckless driving. I consider the decision to accumulate the sentence for the offence of reckless driving with the sentence for the offence of driving whilst under suspension to be in accordance with principle and well justified in all the circumstances.

133 Even if it were accepted that these sentences should have been ordered to be served concurrently, as I have indicated, there is no basis in principle for not accumulating the sentence for the offence of damage. If the total sentence were constructed in that way, but ordering the sentence of 6 months for unlawful damage to be served cumulatively on the sentence of 9 months for driving whilst under disqualification, the total sentence would be the same: 15 months' imprisonment. In my view, there are two outcomes which I consider to be consistent with principle and the circumstances of this particular matter are these.

134 The first is to accumulate the sentences for the two groups of offences, the driving offences and the damage offence which results in a total sentence of 15 months' imprisonment, and the second is to accumulate the sentences for the two distinct offences relating to driving, the driving under suspension and the reckless driving, and then to accumulate the sentence for the damage offence with a resulting term of imprisonment of 21 months.

135 The option on which the appellant relies, to make all sentences concurrent, would result in a term of imprisonment of 9 months but would not, in my opinion, be in accordance with principle or be proportionate to the criminality of the entire course of conduct.

136 The remaining matters raised on behalf of the appellant in relation to this ground of appeal relate to the seriousness of the offence of reckless driving and to the impact on the appellant of post-natal depression and the taking of her child by the Department. I have addressed these issues in the context of the preceding grounds of appeal. I am not persuaded that they or any of the other matters raised support the view that the total sentence imposed was disproportionate to the overall criminality involved in the offences committed by the appellant when viewed in their entirety. On that basis, this ground of appeal should also be dismissed.

137 The Court is required to give full weight to the discretionary exercise of the sentencing process which is basic and fundamental to the administration of criminal justice: Lowndes v The Queen (supra). Having considered each of the grounds of appeal, and notwithstanding that the Magistrate failed to make reference to the way in which he dealt with the plea of guilty, I am not persuaded that the Magistrate erred in imposing the sentences that he did, nor in the way in which those sentences were ordered to be served. I would grant leave to appeal but dismiss the appeal.

Sentencing Legislation Amendment and Repeal Act 2003(WA)

Sentencing Act 1995(WA)

Criminal Appeals Act 2005(WA)

(Sentencing Procedure) Act 1999

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