Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Appeal - Driving whilst under suspension - Repeat offences - Breach of suspended imprisonment order - Further driving whilst under suspension - Sentences of imprisonment - Variation of sentence

Sentencing Act 1995 (WA)

Sentence of 12 months' imprisonment with eligibility for parole varied. In lieu a sentence of 9 months' imprisonment less 16 days for time served in custody be imposed

Sentence of 12 months' imprisonment concurrent with previous sentence and with eligibility for parole varied

In lieu the appellant be sentenced to 8 months' imprisonment to be served concurrently with sentence in respect of SJA 1120 of 2009

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Abdullah v Mills [2008] WASC 128

Anderson v Heath [2005] WASC 253

Anderson v Little [2009] WASC 143

Anderson v Stillwell [2006] WASC 257

Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206

Bakdadi v O'Neill [2003] WASCA 267

Cooper v Yates [2005] WASC 34

Gould v Whalley [2007] WASC 315

Humble v State Solicitor for Western Australia [2009] WASC 99

Kearney v Rinaudo [2007] WASC 104

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Moody v French [2008] WASCA 67

Narkle v Hamilton [2008] WASCA 31

Palmer v Dwyer [2010] WASC 28

Rossiter v Francisty [2005] WASC 270

Sheiner v Roberts [2009] WASC 281

The State of Western Australia v BLM [2009] WASCA 88

Williams v Franzinelli [2001] WASCA 241

1 EM HEENAN J: These are two appeals against sentences of imprisonment for two repeat offences of driving while under suspension and, in the case of the first appeal, of a breach of the terms of a suspended sentence of imprisonment previously imposed for the first of those driving offences. Each appeal is brought by leave granted by Jenkins J on 29 December 2009. The orders granting leave to appeal also directed that both appeals should be heard together.

2 On 15 October 2008 the appellant appeared before her Honour, Magistrate E Woods in the Perth Magistrates Court for sentence, having pleaded guilty to a charge that, on 16 March 2008 at Kenwick, he drove a motor vehicle, namely a Holden Commodore, bearing registration number 1CPN 572, on a road, namely Oliphant Street, without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence. For this offence, he was sentenced to a term of imprisonment for 12 months, suspended for 12 months, and his motor driver's licence was disqualified for 9 months cumulative on other disqualifications.

3 That offence of driving on 16 March 2008 while under suspension was the appellant's fourth (or perhaps his fifth) conviction for driving while under suspension. He was also charged that on the same date and place he had been in possession of two motor vehicle number plates reasonably suspected of being stolen. On the same day, and also before her Honour in the Magistrates Court in Perth, he pleaded guilty to three other traffic offences which were, respectively, that also on 16 March 2008 he had used a motor vehicle number plate, being one to which he was not entitled; that on the same date and place he drove a vehicle which was not then the subject of a valid motor vehicle licence; and, thirdly, at the same time and place he drove a motor vehicle whilst a compliance notice for that vehicle was in force and contrary to the directions contained in that notice. For those other offences he was fined amounts ranging from $100 to $600.

4 Also at the hearing on 15 October 2008 the learned magistrate was required to deal with a breach by the appellant of an earlier conditional release order which resulted in an order for forfeiture of the recognisance of $300 being made. There was still another offence leading to another breach of the conditional release order resulting in an order for forfeiture of $250.

5 In March 2008, when he committed these offences, the appellant was already subject to an earlier suspended imprisonment order and that and other breaches were dealt with by another fine. The earlier suspended imprisonment order was imposed on 23 May 2007 and was a sentence of 7 months' imprisonment, suspended for 12 months. He breached that on 30 October 2007 and that breach resulted in the imposition of the conditional release order.

6 The learned magistrate had obtained a pre-sentence report (PSR) in relation the appellant before she came to sentence him on 15 October 2008 and, although the PSR is not in the papers before this court on the appeal, it is evident from the transcript of the proceedings before her Honour that it revealed that the appellant had a significant record for minor offences, a dislocated lifestyle, financial worries and some medical problems. Her Honour was plainly, and rightly, concerned about the appellant's repeated offending, which included breaches of earlier suspended imprisonment orders. Her Honour explained this and warned the appellant in the plainest of terms when imposing sentence by saying:

That will give Mr Mears the opportunity to take up this work, which I think is a far more productive use of his time and probably better for his family. But, Mr Mears, if there are any other infringements, be they similar or not, driving offences or not, then it will march straight back to court. You will breach the suspended imprisonment order and you will go to gaol. It is that simple. Stay away from cars. Do not commit any offence that carries imprisonment. If you do, the outcome will be you will be in custody and you will be there sooner rather than later.

7 That sentence of 12 months' imprisonment, suspended for 12 months, did not immediately result in any application for leave to appeal. It was not until after the later court appearance on 2 October 2009, when immediate terms of imprisonment were imposed, that the application for leave leading to this present appeal was instituted by notice dated 26 October 2009. That sought an extension of time and the order granting leave also granted the necessary extension of time. This appeal, although relating to events earlier in time, is the second appeal instituted before this court, being SJA 1121 of 2009.

8 The next material chronological event is the appellant's appearance before his Honour, Magistrate P Heaney in the Magistrates Court on 2 October 2009 on charges of two new traffic offences and for breach of the terms of the 12-month suspended imprisonment order imposed on 15 October 2008 as already described. The two new traffic offences were:

(a) that on 18 March 2009 at Cloverdale the appellant drove a vehicle registered number 1ALZ 224 on a road, namely Wright Street, in a built-up area, at a speed exceeding 50 km per hour, namely 64 km per hour; and

(b) that on 18 March 2009 at Cloverdale the appellant drove a motor vehicle, registered number 1ALZ 224 on a road, namely Wright Street, whilst not being a person authorised by Part IVA of the Road Traffic Act 1974 (WA) and whose authority to drive was at the time suspended.

9 After hearing submissions from counsel his Honour, Magistrate Heaney, imposed a fine of $150 upon the appellant for the charge of speeding and sentenced him to a period of 12 months' immediate imprisonment for the offence of driving whilst under suspension. This was the appellant's fifth (or perhaps sixth) offence for driving whilst under suspension.

10 The learned magistrate was then required to deal with the breach of the terms of the last suspended imprisonment order. Counsel appearing for the appellant on that occasion (not his present counsel) submitted that many of the appellant's past problems and unlawful conduct leading to driving whilst under suspension had been associated with his drug habit, with which he had been struggling for some time. The submission was that the most recent offence had occurred very shortly after his mother's death, at a time when the appellant was not thinking properly and was pre-occupied with the desire to get to Collie and meet his father and members of the family as soon as possible. Not surprisingly, the learned magistrate was little moved by such entreaties on behalf of an offender who had received lenient treatment from the courts on several previous occasions and, despite the clearest of warnings, had continued to offend and, in doing so, had breached again the terms of a suspended sentence of imprisonment. His Honour said:

On the charge of driving under suspension there are no mitigatory circumstances. The fact that his mother died a few days before doesn't justify him driving. As I said, a lot of people's mothers have died and fathers have died. It's no excuse for people to go out breaking the law. He knew the consequences of what was going to happen to him if he drove under suspension because the last two times he drove under suspension he got suspended sentences.

He knows the consequences. He took the punt and he lost. On the speeding charge a fine of $150, costs of $60, and for driving under suspension I'll trigger that suspended sentence from 15 October 08 and sentence him to 12 months' imprisonment. For this charge - this new charge - he's sentenced to 12 months' imprisonment concurrent. Twelve months' imprisonment eligible for parole on that one. Right. You can stand down, Mr Mears.

11 The appellant was born on 6 January 1985 and, accordingly, has recently turned 25 whilst in prison serving these sentences. He has a long record of minor offences resulting in many fines, motor driver's licence cancellations and/or disqualifications, and to a sentence of imprisonment imposed by the Children's Court when he was a juvenile. It is clear that on 2 October 2009 the learned magistrate reached the conclusion, with which I respectfully agree, that the appellant had exceeded the bounds of tolerance by society for young offenders and that he deserved, and the interests of the community required, an immediate term of imprisonment. On the present appeals it was not contended that sentences of immediate imprisonment were in any way erroneous or undeserved when imposed on 2 October 2009 but rather, that the sentences imposed, both for the breach of the terms of the suspended sentence of imprisonment, and for the fifth (or sixth) offence of driving whilst under suspension, were excessive. This resulted in appeal number SJA 1120/2009, which is from the sentences imposed on 2 October 2009, as I have said. Because one of those sentences resulted in an order for the imposition of the whole of the period of imprisonment which had been suspended by the sentence of 15 October 2008, a second appeal was instituted against the original 12-month term so suspended and that is how the second application for leave to appeal came to be brought out of time.

12 The orders granting leave to appeal (and in the second appeal an extension of time) granted leave on the grounds as sought, which are:

SJA 1121 of 2009 (the 15 October 2008 sentence) that:

1. The suspended term of 12 months' imprisonment was manifestly excessive taking into account the circumstances of the offence, the circumstances of the appellant, and the sentencing standards for offences of this type.

SJA 1120 of 2009 (from the sentences imposed on 2 October 2009, the grounds are:

1. The learned magistrate erred in law by imposing the whole term of a suspended sentence of imprisonment by failing to adequately take into account a relevant consideration, namely that the appellant was caring for two young children at the time of sentencing.
2. The learned magistrate erred in imposing a sentence for the offending which was manifestly excessive in the light of the circumstances of the offending, the circumstances of the appellant and sentencing standards for offending of this type.
3. The learned magistrate erred in law by failing to adequately take into account the time the appellant spent in remand prior to sentencing.

13 The third ground of appeal in SJA 1120 of 2009 refers to the fact that when he came to be sentenced on 2 October 2009 the appellant had been in custody for a period which counsel now agree should be counted as 16 days. This had been brought to the learned magistrate's attention at the sentencing but no discount or apparent reduction in the sentences or backdating of their effects was expressly granted by his Honour. The only conclusion open is that no reduction or allowance was given for that period of imprisonment while on remand. One possible explanation for this is that the appellant had been in custody for that duration as a result of a warrant of commitment for outstanding fines. However, counsel for the appellant points to s 87 of the Sentencing Act 1995 (WA) which expressly provides that:

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994); and

(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

14 In the present case, the appellant had been arrested for non-payment of fines and when brought before the court on 18 September 2009 was refused bail on the first mention date for the offence which is the subject of SJA 1120 of 2009. It follows that he was in custody on that charge and for the non-payment of fines. The respondent, necessarily and properly, acknowledges that it was open to the learned magistrate, and would be open to this court on any resentencing, to take those 16 days into account in relation to any sentence of imprisonment imposed for those charges either through backdating the term of imprisonment or, alternatively, as part of the general sentencing discretion. Counsel for the respondent cited the decision of the Court of Appeal in Narkle v Hamilton [2008] WASCA 31 [30] where the court observed:

In our opinion, s 87 is not the source of the court's power (which it has long had) to take time spent in custody on remand into account when sentencing an offender. The section sets out the means by which the sentence can be reduced or back-dated where the court has, in the exercise of its non-statutory power, determined, as contemplated by par (b), to take it into account. That the section is not the source of the power to which we have referred is apparent from the provisions of (b) itself. Section 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion.

15 Counsel for the respondents accepted, that in the event of any resentencing, it would be open to the court to take that time spent in custody into account and did not suggest any reason why it should not be taken into account.

16 Although reference has been made, in the submissions to the Magistrates Courts and in the written submissions, on these appeals to the personal circumstances of the appellant, these did not weigh heavily in the disposition of the sentences originally imposed, nor do I consider that they should have any significance influence upon the outcome of these appeals. That is not to say that there are not features of the appellant's life and circumstances which, in a different setting, may not attract special consideration. For example, he is still a relatively young man and is supporting two children. His partner, the children's mother, is presently in custody, apparently because of drug offences. He has battled with the misuse of drugs over quite some years, had little in the way of education or employment and has led a very dysfunctional life. These features no doubt explain why suspended sentences of imprisonment were imposed for earlier offences and, further, when terms of those earlier suspended sentences were breached by reoffending, those suspended sentences were not immediately reactivated. However, it has been his persistent irresponsibility and defiance of the law shown by the appellant's repeated pattern of offending which has eventually outweighed those personal considerations leading to the courts being concerned properly for the welfare and safety of the community. Such has been his pattern of offending that leniency for such personal considerations has become very much a secondary factor. This is apparent from the history of previous convictions and penalties of the appellant's prior offences of driving whilst under suspension. This shows:

12 months' immediate imprisonment, eligibility for parole

* The two convictions on 28 March 2007 for offences committed on 12 and 13 January 2007 account for the differences in counting for the numbers of previous offences for driving while under suspension - for example, five or six shown by this table.

17 Accordingly, the major issues in the appeals quickly emerged as being whether or not the sentences of imprisonment of 12 months imposed for each of the two offences of driving whilst under suspension which had been committed, respectively, on 16 March 2008 and 18 March 2009, were manifestly excessive having regard to the range of sentences imposed for like offences under comparable circumstances as determined by decisions of this court and of the Court of Appeal. It is, accordingly, to those issues that I now turn.

18 In relation to SJA 1121 of 2009 (the sentence imposed on 15 October 2008) counsel for the appellant submits that the maximum penalty for that offence at the time of sentencing, when taking into account the appellant's record, was 18 months' imprisonment. At that date the learned magistrate was bound by cl 2 of sch 1 of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). That required her Honour first to determine an appropriate sentence and then to reduce it by one-third: Cooper v Yates [2005] WASC 34 [15] and Bakdadi v O'Neill [2003] WASCA 267 [5], [8]. This effectively provided for a maximum of 12 months' imprisonment: Mason v Morrison [2004] WASCA 181 [24] and McDonald v White [2007] WASCA 213. It followed from this that, although the sentence of imprisonment was suspended, the actual term of imprisonment was for the maximum which the magistrate could have imposed and that period was chosen notwithstanding certain mitigating factors. These were that the appellant had entered a guilty plea; that his personal circumstances at that time were that he had been off work due to an injury received at work; that he was experiencing difficulties with a compensation claim; that he had various financial difficulties and that he was supporting his de facto partner and two children; that his grandmother had had a stroke and his mother was ill; and, that he was in a position to start work under a shearing contract.

19 In relation to SJA 1120 of 2009 (the sentences imposed on 2 October 2009 including 12 months' immediate imprisonment for the offence of driving whilst under suspension) the position at that date was that the transitional provisions no longer required a one-third reduction so that the maximum penalty applicable to the appellant, in his circumstances, was then 18 months' imprisonment. However, in The State of Western Australia v BLM [2009] WASCA 88 [7] Wheeler and Pullin JA (Owen JA agreeing) said that the effect of the Sentencing Legislation Amendment And Repeal Act 2003 (WA) which they preferred required:

... a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act.

20 Prior to the repeal of the transitional provisions it was accepted that the maximum penalty available was 12 months' imprisonment: Mason v Morrison (supra). In the case of Anderson v Little [2009] WASC 143, decided after the repeal of the transitional provisions, a term of 7 months' imprisonment for an offence of driving whilst under suspension was substituted for a term of 12 months' imprisonment imposed at first instance notwithstanding that that appellant had been charged with other offences and had three previous convictions for driving whilst under suspension in the previous 20 years and even more before then.

21 In this regard, the appellant's submission is that the maximum sentence reasonably applicable was imposed on 2 October 2009, again notwithstanding a plea of guilty, the appellant's relatively young age, and the fact that his bereavement arising from his mother's recent death could reasonably be expected to have played some part in his illegal conduct. Moreover, the pattern of sentences which emerge from a consideration of the decisions mentioned below show that most comparable sentences for similar offences lie in the range of 6 to 9 months' imprisonment.

22 In these circumstances, counsel for the respondent conceded, and I have no hesitation in saying correctly so, that both sentences of 12 months' imprisonment imposed in October 2008 and October 2009 for each of two offences of driving whilst under suspension were manifestly excessive. That being so, error in the exercise of the sentencing discretion has been demonstrated and the appellant should be resentenced. An important consequence of this conclusion is that the suspended period of imprisonment for 12 months, itself being regarded as excessive, means that it was also excessive for the appellant to be sentenced to that period of imprisonment on proof of breach of the terms of the suspended imprisonment order.

23 Numerous recent cases have considered the sentencing patterns for multiple offences of driving whilst under suspension and where there is a history of previous similar convictions. In Sheiner v Roberts [2009] WASC 281 there is collected in the schedule a series of cases showing the penalties imposed for driving whilst under suspension over a period of 10 years. These issues were also considered in McDonald v White [2007] WASCA 213 and Moody v French [2008] WASCA 67, two recent decisions of the Court of Appeal. Other cases dealing with appeals from sentences imposed for offences of driving whilst under suspension include Rossiter v Francisty [2005] WASC 270; Anderson v Heath [2005] WASC 253; Gould v Whalley [2007] WASC 315; Anderson v Stillwell [2006] WASC 257; and in another decision of the Court of Appeal, Mason v Morrison [2004] WASCA 181.

24 I examined these and other decisions in the recent similar case of Palmer v Dwyer [2010] WASC 28. I am satisfied that these cases support, in a general way, the proposition that when sentencing for multiple offences of driving whilst under suspension a range of 4 to 9 months' imprisonment is the conventional for the disposition for each individual sentence. That conclusion is supported further by the decisions in Humble v State Solicitor for Western Australia [2009] WASC 99; Abdullah v Mills [2008] WASC 128; Williams v Franzinelli [2001] WASCA 241; Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206; and Kearney v Rinaudo [2007] WASC 104. This last batch of cases shows that sentences for convictions for driving while under suspension involving fourth, fifth, sixth, seventh or eighth such offences resulted in terms of imprisonment, after appeal, being fixed at between 4 months and 9 months with eligibility for parole.

25 While every case is slightly different and there may be different circumstances of aggravation and mitigation, this pattern has now emerged as being remarkably stable in this State over the past 10 years, leading to my previous observation in Palmer v Dwyer (supra) [35] that sentences aggregating in effect somewhere near the region of 10 to 12 months are commonly imposed and seldom exceeded although there have been a small number of instances of longer periods of imprisonment.

26 Accordingly, these are the principles and standards to be applied when resentencing this appellant. In relation to the offence committed on 16 March 2008, leading to the conviction and sentence imposed in the Magistrates Court on 15 October 2008 (SJA 1121 of 2009) I have already concluded that the period of 12 months' imprisonment, even though it was ordered to be suspended, was excessive. In my view, having regard to the authorities, an appropriate term of imprisonment for that offence is 8 months' imprisonment, but again suspended. It follows that I would allow this appeal, set aside that sentence and order, instead, that for that conviction the appellant be sentenced to 8 months' imprisonment but suspended for 12 months without varying any of the orders for disqualification or costs made on that occasion.

27 Turning then to appeal number SJA 1120 of 2009, arising from the sentences imposed on 2 October 2009, it follows that a period of 12 months' imprisonment for the breach of the suspended term of imprisonment should not have been imposed when the proper suspended term has now been fixed at 8 months. However, the breach of the terms of the suspended imprisonment order, coupled with the appellant's prior bad history of offending, including earlier breaches of suspended imprisonment terms resulting in non-custodial dispositions, clearly required that a term of imprisonment should be imposed. Having regard to the provisions of s 80(1) and s 80(3) of the Sentencing Act, there is no reason why the whole of the suspended term should not have been ordered to be served. Accordingly, I consider that the sentence which should be imposed in relation to the breach and the terms of the suspended imprisonment order of 15 October 2008 arising from the offence committed on 16 March 2009 should be an immediate term of imprisonment for 8 months.

28 Appeal number SJA 1120 of 2009 also requires a consideration of the sentence of 12 months' imprisonment imposed on a further offence of driving whilst under suspension committed by the appellant on 18 March 2009. The sentence imposed was 12 months' immediate imprisonment, to be served concurrently and with eligibility for parole. Again I have concluded that the period of 12 months' imprisonment was excessive, having regard to the pattern of sentencing established by the authorities which I have considered. Nevertheless, for this offence of driving whilst under suspension it is evident that a penalty should be imposed which brings home to the appellant the consequences of repeated offending and which acts as a general deterrent to other potential offenders. For that reason, therefore, I consider that a period of 9 months' imprisonment should be imposed for that offence but to be served concurrently with the earlier 8-month term.

29 The imposition of this 9-month term for the offence committed on 18 March 2009, however, needs to take into account the period of 16 days in custody served by the appellant while on remand for that offence. The reasons for this have already been canvassed and I am satisfied that it should be fully taken into account. As a consequence, the term of imprisonment for that offence will be 9 months less 16 days, to be served concurrently and with eligibility for parole.

30 When allowing these appeals and resentencing the appellant I also made orders that he should be eligible for parole in respect of each of the three sentences as varied. However, as each sentence, as so varied, is for less than 12 months' imprisonment, a parole eligibility order by this court is not appropriate - Sentencing Act 1995 (WA) s 89(2). Nevertheless, I remain of the view that the appellant should be regarded as suitable for parole, notwithstanding that no express order in that regard is to be made by this court. Accordingly, and pursuant to the provisions contained in s 37 of the Sentencing Act 1995 (WA), I have recalled the earlier orders for parole eligibility and have withdrawn them. That should, of course, not be taken as any indication that the appellant is in any way unsuitable for parole.

31 The result is that both appeals are allowed, that the sentences imposed on 15 October 2008 and on 2 October 2009 be set aside and in lieu thereof it be ordered that the sentences of the appellant for those offences be as follows:

(a) for the offence of driving whilst under suspension committed on 16 March 2008 for which the appellant was originally sentenced on 15 October 2008 - 8 months' imprisonment but suspended for 12 months;

(b) for the breach of that suspended term of imprisonment committed by the appellant when offending on 16 March 2009 and for which he was sentenced on 2 October 2009, the sentence be an immediate term of imprisonment of 8 months; and

(c) for the further offence of driving whilst under suspension committed on 18 March 2009 and for which the appellant was sentenced in the Magistrates Court on 2 October 2009, the appellant is sentenced to an immediate term of imprisonment of 9 months, less 16 days, to be served concurrently with the term of imprisonment referred in (b) above.

32 None of these orders will affect, disturb or vary any of the orders made in the Magistrates Courts for further suspensions or disqualifications of the motor driver's licences or for costs.