Court of Appeal (WA)|2008-03-20|Before: Ms J, Steytler P, Wheeler JA, Lure JA, Buss JA, Miller JA, Johnson J

MOODY -v- FRENCH [2008] WASCA 67 (20 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOODY -v- FRENCH [2008] WASCA 67

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MOODY -v- FRENCH [2007] WASC 190

Criminal law - Sentencing - Effect of transitional provisions

Criminal law - Sentencing - Mitigating factors - Plea of guilty - Whether reduction in sentence must result - Willingness to facilitate the course of justice

Criminal law - Sentencing - Parole eligibility - Whether bias in favour of parole - Application of s 89 Sentencing Act

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 2(1)

Sentence of 21 months' total imprisonment without eligibility for parole set side

In lieu, impose sentence of 12 months' total imprisonment, commencing 1 July 2006, with eligibility for parole

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Abdullah v The Queen [2002] WASCA 5

Anderson v Heath [2005] WASC 253

Anderson v Stilwell [2006] WASC 257

Austin v Grapes [2004] WASCA 102

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Channel Seven Perth Pty Ltd v 'S' [2007] WASCA 122; (2007) 34 WAR 325

Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997)

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106

Findlay v The State of Western Australia [2007] WASC 61

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Hapke v The State of Western Australia [2006] WASCA 188

Kearney v Rinaudo [2007] WASC 104

Kearney v The State of Western Australia [2006] WASCA 251

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Messiha v Royce [2004] WASCA 290

Messiha v Royce [2004] WASCA 87

Moody v French [2007] WASC 190

Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248

Pickett v The State of Western Australia [2004] WASCA 291

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Corrigan [1994] 2 Qd R 415

R v Marshall [1993] 2 Qd R 307

R v Shannon (1979) 21 SASR 442

R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383

Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416

Rossiter v Francisty [2005] WASC 270

Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322

Taylor v The Queen [2004] WASCA 31

Thompson v The Queen (1992) 8 WAR 387

Ugle v The State of Western Australia [2007] WASCA 199

Wongawol v The Queen (1998) 101 A Crim R 350

Woods v The Queen (1994) 14 WAR 341

1 STEYTLER P & WHEELER, McLURE & BUSS JJA: This appeal against sentence raises four issues. The first relates to the application of cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (transitional provisions). The second relates to the effect upon sentence of a plea of guilty. The third relates to the construction of the provisions of s 89 of the Sentencing Act 1995 (WA) concerning eligibility for parole. The fourth relates to the appropriate sentence to be imposed upon a serial repeat offender who drives while under suspension and after drinking alcohol, but who has not previously been subjected to a term of immediate imprisonment of longer than 4 months and who had last offended some 3 1/2 years previously.

2 On 7 July 2006, the appellant, a 41-year-old woman, pleaded guilty to charges alleging four driving offences. Two of these offences were committed on 26 May 2006. On that day, the appellant drove a car when her driving licence was suspended. She also had a blood alcohol content in excess of the statutory limit. This was calculated to have been 0.12% at the time of driving. The other two offences were committed on 30 June 2006. Again, the appellant drove while her driving licence was suspended. She was under the influence of alcohol. Her blood alcohol level was calculated to have been 0.214% at the time of driving.

3 All four offences were committed whilst the appellant was subject to a suspended sentence of imprisonment. This had been imposed in respect of a conviction for breach of s 171 of the Criminal Code (WA). That section makes it an offence, inter alia, to do an act with the intention of creating a false belief that human safety is or may be endangered. This offence was committed by the appellant on 15 July 2005.

4 The appellant had an appalling childhood. As she got older, she turned to alcohol as a coping mechanism. This contributed to her unenviable criminal record in respect of driving offences. Her convictions on 11 August 2006 (following her pleas of guilty on 7 July 2006) for driving under suspension were her tenth and eleventh convictions for that offence. She had previously been convicted on 1 August 1983, 25 January 1992, 1 September 1992 (three convictions), 25 July 1995, 13 May 1996, 27 February 1998 and 28 December 2000. She also had a prior conviction (on 7 April 2003) for driving whilst her licence was suspended because of unpaid fines. She had five previous convictions for driving without a licence. These were respectively dated 7 July 1983, 4 May 1987, 21 September 1989, 18 July 1990 and 13 September 1994. She had two prior convictions for driving with a blood alcohol level in excess of 0.08%. These convictions were respectively dated 1 September 1992 and 28 December 2000. She had one prior conviction, dated 13 May 1996, for driving with a blood alcohol level in excess of 0.05%. Finally, she had three prior convictions for driving under the influence (respectively dated 1 September 1992, 13 September 1994 and 7 April 2003).

5 A number of community-based dispositions have been tried in respect of the appellant. These had little or no success. She was sentenced to a term of 4 months' imprisonment in respect of her conviction for driving under suspension on 28 December 2000 (her ninth such conviction). This was the longest sentence of immediate imprisonment that had been imposed upon her, although sentences of suspended terms of up to 9 months' imprisonment had been imposed. The latest of these suspended sentences was that imposed in respect of the offence committed by the appellant on 15 July 2005. A suspended term of 9 months' imprisonment was imposed upon her in respect of that offence.

6 The appellant was sentenced on 11 August 2006. The sentencing magistrate described the appellant, accurately, as a danger to road users. He fined her $1,200 in respect of her conviction for driving with a blood alcohol level in excess of 0.08%. On each of the charges of driving under suspension, he imposed a sentence of 9 months' imprisonment, to be served concurrently. On the charge of driving under the influence, the appellant was sentenced to a term of 12 months' imprisonment to be served cumulatively upon the 9 month term. Disqualification orders were made. On the charge of creating a false belief, in respect of which the suspended sentence was still under operation, the magistrate ordered that the appellant serve a term of 9 months' imprisonment concurrently with the other terms. This made up a total of 21 months' imprisonment.

7 The magistrate declined to make the appellant eligible for parole. This was because of her criminal record and what he described as the 'seriousness of the offending'.

8 The appellant appealed to a single judge of the Supreme Court. There were three grounds of appeal that are presently relevant. The first was that the magistrate erred either by failing to reduce the sentences imposed by one-third, as required by the transitional provisions, or by failing to reduce them on account of the appellant's pleas of guilty. The second ground was that the magistrate erred by failing to make the appellant eligible for parole. The third ground was that 'the sentence imposed' was manifestly excessive. The primary judge dismissed all three grounds: Moody v French [2007] WASC 190.

9 On 7 July 2006 the appellant pleaded guilty to the offences committed on 26 May 2006. On that day she made her third appearance on those charges. On the same day, she pleaded guilty to the offences committed on 30 June 2006. The magistrate did not refer to these pleas of guilty when making his sentencing remarks. The sentence of 12 months' imprisonment imposed by him in respect of the offence of driving under the influence was the maximum that he could impose after taking into account the transitional provisions: s 63(1) and s 63(2)(c) of the Road Traffic Act 1974 (WA).

10 The primary judge found [24] that, notwithstanding the absence of any reference by the magistrate to the pleas of guilty, he was obviously aware of them. She said [37] that, once the reduction in accordance with the transitional provisions was taken into account, it was apparent, in the case of the charge of driving under the influence, that the magistrate had imposed the maximum sentence with no discount for the plea of guilty. However, she did not regard that as giving rise to 'an appellable error'. She referred, in this respect, to Findlay v The State of Western Australia [2007] WASC 61, in which Martin CJ said [34] that, when an offender has been caught red-handed, with no possible avenue of defence, an early plea of guilty might simply reflect his or her recognition of the inevitable, rather than show remorse or any insight into the seriousness of the offending behaviour. In that case, the offender had made an early plea of guilty to a charge of driving under the influence. Martin CJ upheld a sentence of 12 months' imprisonment that had been imposed for that offence notwithstanding that this was the maximum penalty that could be imposed, after taking into account the transitional provisions.

11 The primary judge said that, in the present case, the plea of guilty similarly reflected the inevitable outcome. She also found that, whilst the appellant accepted responsibility for her offending, her display of remorse was questionable. She said that the appellant, knowing that she was not legally entitled to do so, had chosen to drive, while under the influence of alcohol, 'out of convenience and the desire not to anger her partner' (who had displayed a history of abusive behaviour towards her). The primary judge concluded [40] that in all of these circumstances there was, in the case of that offence, 'a sufficient justification not to reduce the sentence as a result of the pleas of guilty'. She added ([41] and [42]) that the justification for the imposition of the maximum penalty was reinforced by the appellant's prior history of offending and by the need for personal and general deterrence.

12 The magistrate made no reference to the transitional provisions in his sentencing remarks. However, the primary judge was not prepared to accept [34] that he had been unaware of their existence and effect. She said, as regards the operation of these provisions [30]:

Counsel for the appellant submits that, if the learned Magistrate has failed to apply the transitional provisions then he has failed to do so on the whole sentence and, therefore, the total sentence of 21 months imprisonment should be reduced to 14 months. In my view, that submission is in conflict with the way in which the reduction is applied by the courts and fails to consider whether the individual sentences imposed already reflect the one third deduction. The way in which the transitional provisions are applied in relation to offences with a comparatively low maximum sentence, such as is the case with many traffic offences, is to deduct one third from the maximum sentence and then determine where within that range lies the sentence which is most appropriate for the offence taking into account the circumstances of the offence and all matters in mitigation. When that exercise is carried out with respect to the offence of driving [under the influence], which has a maximum of 18 months in this case, the maximum sentence is 12 months.

13 For the reasons mentioned above, she concluded that the maximum sentence was justified in the case of the offence of driving under the influence. She seemingly also considered that each of the terms of 9 months' imprisonment imposed in respect of each of the offences of driving under suspension was appropriate. The legislation provided a maximum term of 18 months' imprisonment for that offence: s 49(1), s 49(2)(a)(iii) and s 49(3) of the Road Traffic Act (12 months' imprisonment after allowing for the operation of the transitional provisions).

14 When she came to deal with the issue of parole, the primary judge referred [46] to Findlay [29] in support of the proposition that, since s 89(1) of the Sentencing Act 1995 (WA) confers a general discretion on the court to grant or refuse parole, there is no longer a 'presumption' in favour of parole. Cases decided in this jurisdiction had suggested, before the enactment of that section, that there was a 'bias' in favour of the making of a parole order: Thompson v The Queen (1992) 8 WAR 387; Wongawol v The Queen (1998) 101 A Crim R 350; although it had also been held that this did not mean that a sentencing judge had to start from a presumption in favour of the grant of parole: Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336 [87] (Anderson J); Abdullah v The Queen [2002] WASCA 57 [14]. Sections 89(1) to 89(4) of the Sentencing Act now read as follows (the section was amended on 28 January 2007; however the effect of the section, for present purposes, is not materially different):

(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.

(2) A parole eligibility order must not be made if the fixed term, or the aggregate of the fixed terms, imposed by the court is less than 12 months, except where the offender, at the date of the sentence, is serving or has yet to serve -

(a) a parole term imposed previously; or

(b) a fixed term or fixed terms imposed previously -

(i) which, or the aggregate of which, is less than 12 months; and

(ii) which, with the term or terms imposed by the court, would result in an aggregate of 12 months or more.

(3) A parole eligibility order must not be made in respect of a prescribed term.

(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant.

15 The primary judge next mentioned that the magistrate had declined to order parole eligibility because of the appellant's record and the seriousness of her offending. She said that, because those reasons corresponded with s 89(4)(a) and s 89(4)(b), it would be difficult to show a 'mis-exercise' of the discretion. She rejected a submission that the appellant's criminal record was not 'significant' for the purposes of s 89(4)(b). She said, in that respect [51]:

Clearly, the legislature did not intend s 89(4)(b) to include only serious records or records containing serious offences, otherwise the term 'serious' would have been used as it was in s 89(4)(a) of the Sentencing Act 1995. Whether the record is significant will depend on the offence or offences for which the appellant is being sentenced and in relation to which parole eligibility is being considered and on any particular factors which have arisen in that context. The sentence imposed for various prior offences is not the only information contained in a criminal record which is relevant to a consideration of parole eligibility.

16 Because of the appellant's lengthy record for driving offences and her poor response to community-based supervision, the trial judge [55] considered that the magistrate 'was entitled to rely on the appellant's significant record as a factor militating against eligibility for parole'. She also considered that the offence of driving under the influence was a serious offence.

17 The primary judge correctly understood ground 3 (that the total sentence imposed was manifestly excessive) as amounting to a contention that the totality principle (to which we will return below) was infringed. She rejected that contention. She also said that the individual sentences were appropriate. She added [65] that each of the offences of driving under suspension could have justified an even higher sentence than that imposed, given that they were the appellant's tenth and eleventh convictions for that offence. She considered [86] that the total sentence imposed was appropriate to the criminality of the conduct involved.

18 There are three grounds of appeal to this court.

19 The first ground raises three contentions. The first of these is that the approach adopted by the primary judge to the application of the transitional provisions was incorrect. Counsel for the appellant contends that there is no distinction between the approach which should be adopted in the case of offences with a comparatively low maximum sentence and that which should be adopted in other cases. He submits that it was incorrect to deduct one-third from the maximum sentence that could be imposed and then determine where, within that range, an appropriate sentence should lie. He argues that what should have happened is that an appropriate sentence should have been arrived at, taking into account the statutory maximum provided for the offence, and that the sentence should then have been reduced in accordance with the transitional provisions.

20 The second contention raised by ground 1 is that the primary judge should have found that the magistrate erred by failing to allow a discount for the plea of guilty or by failing to apply the transitional provisions.

21 The third contention raised by ground 1 is that the primary judge erred in fact by finding that the offence of driving under the influence warranted the maximum sentence available.

22 Ground 2 challenges the primary judge's finding that there is no bias towards eligibility for parole in s 89 of the Sentencing Act. It also challenges her finding that the magistrate made no error in failing to order parole eligibility.

23 Ground 3 contends that the primary judge erred by finding that the total sentence of 21 months' imprisonment was not manifestly excessive.

24 In our opinion, the transitional provisions are unambiguous. Clause 2(1) provides that:

If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.

The clear effect of this provision is that sentencing should first proceed as it always has done, by taking into account all relevant factors, including the maximum penalty provided by the legislation for the offence. Then, having arrived at an appropriate sentence, the court is required to reduce that sentence by one third. It is worth restating that, in the case of multiple offences, this exercise must be undertaken before orders for cumulation or concurrency are made (Hapke v The State of Western Australia [2006] WASCA 188 [111]; Ugle v The State of Western Australia [2007] WASCA 199 [20] - [22]), although there is nothing to prevent a sentencing judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency before fixing the particular sentences and their appropriate aggregation: Hapke [111]; Ugle [21] and [22].

25 The approach adopted by the primary judge, in deducting one-third from the maximum sentence and then determining where, within that range, lay the sentence which was most appropriate for the offence, is consequently incorrect.

26 However, it could not have led to any different result in respect of the offence of driving under the influence of alcohol. If the maximum penalty was justified, either approach would produce the same outcome (a sentence of 12 months' imprisonment). We should add that the same would be true if, for example, a court was to adopt a mathematical approach and decide that a particular percentage of the maximum penalty was appropriate. However, if a more conventional approach to sentencing is adopted, the two approaches will not inevitably produce the same outcome.

27 As to the offences of driving under suspension, it seems plain that the primary judge would have arrived at the same result no matter which approach was adopted. She suggested ([63] and [65]) that an even higher sentence could be justified in respect of the later of the two offences.

28 We would accordingly decline to uphold this part of ground 1.

29 There is no doubt that a plea of guilty is a mitigating factor. Section 8(2) of the Sentencing Act says so. That section provides that:

A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

30 'Mitigating factors' are defined by s 8(1). These are factors 'which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished'.

31 Section 8(4) provides that:

If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. (emphasis added)

32 That section was construed by Roberts-Smith JA in H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [28] and [29]. He rejected a submission that, on the proper construction of s 8, a mitigating factor will not always result in a reduction in sentence. He read s 8(4) as meaning 'only that where in fact a court reduces a sentence because of a particular mitigating factor, it must say so'. He went on to say [29] that the effect of s 8(2), read with s 8(1), is that a plea of guilty 'is always a mitigating factor and so will always have the consequence of decreasing the extent to which the offender should be punished'. The other two judges in that case (Steytler P and McLure JA) found it unnecessary to consider that question.

33 With respect, we disagree with that construction. As we read the section, the use in s 8(4) of the word 'If' assumes that the existence of a mitigating factor will not necessarily result in a reduction of sentence. There is no doubt that, by a combination of s 8(1) and s 8(2), a plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished. However, that does not automatically translate into a reduction in sentence, as s 8(4) appears to recognise. It is open to a court to find that, although a particular factor (such as a plea of guilty) decreases the culpability of the offender or the extent to which the offender should be punished, that factor is so outweighed by other factors that it is necessary to impose the maximum sentence because, even allowing for the mitigating effect of that factor, the offence falls within the worst category of offences of its type. An example might be a case in which an offender is convicted of importing 100 kg of heroin. In such a case, even taking into account a plea of guilty (which might result from recognition of an inevitable conviction), the court might conclude that the offence falls within the most serious category contemplated by the legislature and impose the maximum penalty: see, in this respect, R v Marshall [1993] 2 Qd R 307 (Macrossan CJ).

34 This approach is consistent with what was said by Kirby J in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 (in which s 8 of the Sentencing Act was considered). Kirby J said [65(2)]:

It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it in the course of performing the complex task of imposing criminal punishment (R v Gray [1977] VicRp 27; (1977) VR 225 at 229). (emphasis in the original)

35 Although it might consequently be accepted that it is not mandatory to reduce a sentence on account of a plea of guilty, it is well established that, in all but the most exceptional of cases, a plea of guilty will have that result. One need go no further, in this respect, than the provisions of s 8(1) and s 8(2) of the Sentencing Act. If a plea of guilty is a mitigating factor (as it always will be by virtue of s 8(2)) then, as we have said, it must (because of s 8(1)) decrease culpability, or the extent to which the offender should be punished, and it will necessarily be a very rare case in which, notwithstanding the mitigating effect of the plea, the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified.

36 We have mentioned that s 8(2) was discussed by the High Court in Cameron. The court considered the interaction of that section with s 7(2)(a) of the Sentencing Act, which provides that an offence is not aggravated by the fact that an offender has pleaded not guilty to it. Gaudron, Gummow and Callinan JJ said [19] that s 8(2) must be read 'as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice' (see also Kirby J [65(3)]). Other mitigating features of a plea of guilty are that it is usually indicative of remorse (Cameron [39] (McHugh JA) and the cases there cited, [65(4)] (Kirby J)) and that it evidences an acceptance of responsibility (Cameron [11] (Gaudron, Gummow & Callinan JJ)). Consequently, even in cases in which a plea of guilty is inevitable because of the strength of the prosecution case, it will ordinarily attract a discount because it nonetheless evidences a willingness to facilitate the course of justice and, perhaps, indicates an acceptance of responsibility.

37 Ordinarily, in this State, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances: H [9] and the cases there cited. In particular cases the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more, although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal justice system: R v Shannon (1979) 21 SASR 442, 449 (King CJ); and Cameron [65(3)] (Kirby J). The amount of the reduction is discretionary. Sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. In Cameron [65(2)] Kirby J said:

Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan v The Queen (2001) 206 CLR 267 at 278 [33]). Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances.

38 However, the authorities overwhelmingly support the proposition that, other than in an exceptional case of the kind to which we have referred, some discount should be allowed even in a case in which the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility. In Shannon, 451, King CJ said:

If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of a penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts.

Cases in which the utilitarian value of the plea has been said to warrant a discount (since Cameron, upon the basis of recognition of willingness to facilitate the course of justice) include Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997); R v Corrigan [1994] 2 Qd R 415, 416; Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 [21]; R v Harris [1992] SASC 3624; (1992) 59 SASR 300, 302; R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 [90] - [93], [115]; Kearney v Rinaudo [2007] WASC 104; and McDonald v White [2007] WASCA 213 [28]. The importance of this factor is recognised by s 8(2) of the Sentencing Act, which operates regardless of whether the offender has or has not been caught red-handed, or is or is not remorseful. In Findlay (which, as we have said, was relied upon by the primary judge), there was no mention of this factor which, as we have pointed out, is recognised as important, not only by the legislature, but also by the High Court.

39 That leaves the question what sentence should have been imposed in respect of the appellant's conviction for driving under the influence.

40 The appellant is a serial offender. She has continued to drive under suspension notwithstanding her nine previous convictions for that offence, as well as other, similar, convictions. She has an ongoing problem with alcohol which she has been unwilling or unable to address. She has repeatedly driven when under the influence of alcohol or with a blood alcohol level of more than the prescribed level. However, as we have mentioned, she had not previously been sentenced to a term of immediate imprisonment longer than 4 months. Also, it is significant that her last conviction for a driving offence, prior to the present offences, was on 7 April 2003, in respect of offences committed on 29 October 2002, some 3 1/2 years prior to the commission of the first two of the present offences. Moreover, she is no longer in her previous abusive relationship, which had contributed to her offending behaviour. In these last three circumstances it was an error, in our respectful opinion, to regard the offence of driving under the influence as one which fell into the exceptional category of being so serious as to demand the imposition of the maximum penalty notwithstanding the mitigatory effect of the plea of guilty.

41 We would consequently uphold that part of ground 1 that contends that the primary judge erred by finding that the failure to give a discount for the plea of guilty gave rise to no error. It is unnecessary to give separate attention to the third contention raised by ground 1, being that the primary judge erred in fact by finding that the offence of driving under the influence warranted the maximum sentence available.

42 There has been debate in this jurisdiction concerning the question whether there is a bias in favour of making an order declaring an offender to be eligible for parole. In Thompson v The Queen (1992) 8 WAR 387, 395, the court (Malcolm CJ, Pidgeon & Owen JJ), speaking of the then provisions of s 37A of the Offenders Community Corrections Act 1963 (WA), said:

[T]he discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole ... but nonetheless the philosophy of the Act suggests a bias towards eligibility.

43 In Wongawol the Court of Criminal Appeal (Walsh, Wallwork & Murray JJ) applied those principles to s 89 of the Sentencing Act, as that provision then stood. However, as we have mentioned, in Garlett [87] Anderson J (Pidgeon J concurring) said that the statement in Thompson to the effect that there was 'a bias towards eligibility' did not mean that there was a presumption in favour of parole. He said that it meant only that 'provided there is material before the sentencing judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is sufficient reason not to exercise that discretion in his or her favour'.

44 Since the coming into effect of the current form of s 89, there has been ongoing controversy concerning the question whether there is still a 'bias' of that kind. The current section was introduced, in 2003, by the Sentencing Legislation Amendment and Repeal Act. The legislative history of s 89 has been referred to in some detail in Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248 [12] (Wheeler JA), [22] (Pullin JA), [57]- [64] (Miller JA). As was pointed out by Wheeler JA in that case, in the Second Reading Speech of the Minister introducing the Sentencing Legislation Amendment and Repeal Bill 2002 (Western Australia, Parliamentary Debates, Legislative Assembly, 15 August 2002, 177 - 180), 'key reforms' introduced by the Bill were said to include 'greater capacity for courts to refuse eligibility for parole'. The Minister also said:

Currently, the system contained within the Sentencing Act in relation to eligibility for parole, in effect, provides for a presumption in favour of eligibility for parole. This presumption will no longer apply. Parole will be less available, particularly for repeat offenders and those who have offended on parole in the past. Thus parole will be for those who can most benefit from it. It will be easier for a court to refuse parole.

45 These comments (which were inaccurate insofar as they referred to the existence of a presumption in favour of parole) appear to have been made in reliance upon a 'Report of the Review of Remission and Parole' (the Hammond Report) prepared on behalf of the Ministry of Justice in March 1998. Recommendation 3 of that report was that 'the sentencing court be given greater discretion to determine that an offender is ineligible for parole and that statutory provision be made to this effect'. This recommendation is referred to in the explanatory notes for the Sentencing Legislation Amendment and Repeal Bill in respect of s 89(4). The notes read as follows:

Subsection (4) provides a range of factors to be considered by a court in deciding whether or not to make a parole eligibility order. This reflects Recommendation 3 of the Review of Remission and Parole.

46 The current provisions of s 89 have been considered on a number of occasions: see, for example, Messiha v Royce [2004] WASCA 87 [110] (where Simmonds J considered that the position enunciated in Garlett remained unaltered); Austin v Grapes [2004] WASCA 102 [25] (also Simmonds J); Taylor v The Queen [2004] WASCA 31 (McKechnie J, Steytler & Wheeler JJ concurring); Piccolo [15], [19] (Wheeler JA), [23], [24] (Pullin JA), [62] (Miller JA); Findlay [29]; and Ugle [54] (Owen JA, Wheeler JA concurring), [72] (Miller JA). These cases reveal some differences in approach, leaving the question of the existence or otherwise of a 'bias' in favour of parole substantially unresolved. It is consequently appropriate for this court, comprising five judges, to approach that question afresh.

47 The question is one of construction. Section 89(1) gives to the court a power to order that an offender be eligible for parole. However, that section must be read with s 89(4), which provides that a court may decide not to make a parole eligibility order if it considers that the offender should not be eligible for parole because of at least two of the four factors identified in that section. Accordingly, the word 'may' in s 89(1) is merely used to confer a power which is to be exercised in accordance with the provisions of s 89(4): Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134 - 135 (Windeyer J); Channel Seven Perth Pty Ltd v 'S' [2007] WASCA 122; (2007) 34 WAR 325 [19] (McLure JA).

48 The combined effect of those subsections is that the court is required to make a parole eligibility order if only one or none of the four factors identified is present. The preponderance of authority reflects this by holding that the court's discretion whether or not to make a parole eligibility order is enlivened only if two or more of the four factors identified in s 89(4) are present: Kearney v The State of Western Australia [2006] WASCA 251 [27] (Buss JA, Roberts-Smith & Pullin JJA concurring); Piccolo [13] (Wheeler JA), [23] (Pullin JA), although cp Miller JA [62]; Ugle [50] (Owen JA, Wheeler JA concurring), Miller JA contra [72]; and cp the ex tempore reasons in Pickett v The State of Western Australia [2004] WASCA 291 [7] (McKechnie J, Miller J agreeing & McLure J agreeing generally).

49 In our respectful opinion, this is the preferable construction of s 89. It gives effect to what seems to us to be the unambiguous meaning of the words used in s 89(1) and s 89(4). We are, with respect, unable to see how, otherwise, those two subsections are able to stand together. If the discretion accorded by s 89(1) was not intended to be qualified by s 89(4), it is difficult to see what purpose the latter provision has, more particularly given the use of the words 'because of at least two of the following four factors' (our italics). It is important to bear in mind that s 19 of the Interpretation Act 1984 (WA) (and its equivalent provisions) does not permit recourse to a second reading speech for the purpose of departing from the ordinary meaning of the words used unless the meaning is ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable: Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416, 420; Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 [19] - [20] (Gleeson CJ).

50 It consequently seems to us that the only 'bias' in favour of eligibility for parole is that which arises because of the requirement to make a parole eligibility order unless the discretion to decline to do so is triggered by the presence of two or more of the factors identified in s 89(4). Once the discretion is triggered, the court is required (without any predisposition or bias) to take all of the relevant considerations into account, including those identified by s 89(4), in the course of deciding whether or not to make a parole eligibility order. One of the more important considerations will be the offender's prospects of rehabilitation and the question whether or not that sentencing objective will be assisted by making a parole eligibility order: Piccolo [66] (Miller JA); Ugle [55], [58] (Owen JA, Wheeler JA concurring).

Showing a 'mis-exercise' of the discretion

51 It has been said, in some of the cases, that, when a judge exercises a discretion to decline to make a parole eligibility order in circumstances in which the discretion to do so is triggered by factors within s 89(4), 'it will be difficult to show a mis-exercise of the discretion': Pickett [7] (McKechnie J); Findlay [30] (Martin CJ); Messiha v Royce [2004] WASCA 290 [15] - [16] (McKechnie J, Templeman & Miller JJ concurring); Ugle [52] (Owen JA). That proposition seems to us to require some elaboration. It should not be taken to mean that, merely because two or more of the factors identified by s 89(4) are present, the exercise of the discretion is somehow less assailable. What was said in the cases to which we have referred cannot properly mean anything more than that, if factors enabling an adverse exercise of discretion are present and those factors, together with all other relevant factors, are taken into account by the sentencing judge, it will be difficult to show that any error has been made in the exercise of the discretion. That, of course, is because the court cannot intervene merely because it would have exercised its discretion in a manner different from the sentencing judge: Lowndes [15]. There must be an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 as follows:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

'Serious' offences and 'significant' criminal record

52 That brings us back to the present case. We have said that the magistrate and the primary judge found that the factors identified in s 89(4)(a) and (b) were present because the offences were serious and the offender had a significant criminal record.

53 We respectfully disagree that the offences committed by the appellant can be categorised as 'serious' for the purposes of s 89(4)(a). In any case in which the court is considering making a parole eligibility order, the offence will necessarily be one which is sufficient to justify a term of immediate imprisonment. Consequently, the seriousness of the offence must be judged in the context of offences which, in every case, justify a sentence of immediate imprisonment. That construction is consistent with the provisions of s 6(2) of the Sentencing Act. Section 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that:

The seriousness of an offence must be determined by taking into account -

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

54 The offence of driving under the influence might be categorised as 'serious' when considered in the context of offences generally. An offence of that kind presents a grave danger to other road users. However, in the context of offences that justify sentences of imprisonment, neither that offence nor any other of the present offences (each of which carried a maximum term of 18 months' imprisonment, as we have said) could, in our opinion, be regarded as so serious as to be one of the factors that will trigger the discretion to refuse parole. Consequently, in our respectful opinion, the magistrate and the primary judge were in error in considering that the requirement of s 89(4)(a) was satisfied.

55 However, it seems to us that at least two of the other factors provided for by s 89(4) were present. In our opinion, each of the magistrate and the primary judge was right to find that the appellant has a significant criminal record. In order to be 'significant', a record does not have to be one of serious offending. The 'significance' of the record must be assessed in the light of the present offences. In this case, the appellant is a serious recidivist in respect of this kind of offending. In our opinion, that is enough to make her record 'significant' for the purposes of s 89(4)(b).

56 It also seems to us that there is one 'other reason' that is relevant, for the purposes of s 89(4)(d). That is the appellant's poor response to supervision. We have mentioned that a large number of community-based dispositions have been tried in respect of her, with little or no success. The primary judge said, in this respect [54]:

In this case, the appellant has had many prior community based dispositions. The author of the pre-sentence report describes her response as 'somewhat poor'. In my view it could more appropriately be described as dismal. She has breached seven work and development orders, at least one good behaviour bond and a community release order imposed for a number of alcohol related offences. Despite the benefit of having two separate sentences of imprisonment ordered to be suspended, the appellant breached both of them by offending. Most of the community based orders were breached by re-offending which would create a considerable concern as to the appellant's ability to successfully complete any period of parole without re-offending. Further, when the appellant was placed on a community based order, together with supervision and programme requirements, not only was she breached for non-compliance, the total level of her compliance was attending one scheduled supervision session. Not only does that fact evidence the appellant's high risk of breaching any form of supervision in the community, it indicates a low level of motivation to deal with the underlying causative factors. Neither have the numerous periods of imprisonment imposed on the appellant deterred her from re-offending.

57 It consequently seems to us that the discretion whether or not to make a parole eligibility order has been triggered.

Should a parole eligibility order be made?

58 Whether a parole eligibility order should now be made (the magistrate's exercise of discretion in that respect having miscarried) is academic. That is because, on 12 November 2007, prior to the hearing of the appeal, the appellant was released pursuant to a re-entry release order made under s 52 of the Sentence Administration Act 2003 (WA). The term of that order will expire on 31 March 2008. However, it seems to us that the appellant should have been declared to be eligible for parole.

59 A good deal of assistance is provided in this respect by a pre-sentence report prepared in respect of the appellant on 18 June 2007. That report was prepared for the benefit of the primary judge. However, because she dismissed the appeal, no occasion arose for the re-sentencing of the appellant and she consequently made no reference to it.

60 The report reveals that, since being taken into custody, the appellant has demonstrated 'extremely good conduct'. She is said to have earned the respect of her peers and prison staff for her helpful attitude. She assists in the orientation of new prisoners and in the provision of an alternative support network for them. She has developed her educational standards and enhanced her employment skills. Prison authorities have said that 'she has made tremendous efforts to turn her life around during her time under their supervision'. She also attended, and completed, a cognitive skills programme, during the course of which she made a significant contribution and showed an awareness of the issues. She has volunteered to participate in, and has enrolled in, a voluntary programme providing counselling with respect to substance abuse. The report concludes by suggesting that granting parole eligibility would enable the appellant to reinforce the positive gains she has made during her incarceration and afford her the supervision and guidance that she would need on release.

61 In these circumstances, and taking into account the fact that the appellant has never previously had the benefit of a parole order, that she has never previously served a term of imprisonment longer than 4 months and that she has ended the abusive relationship in which she was previously involved, a parole eligibility order would, in our opinion, have been appropriate.

62 That leaves ground 3. In our respectful opinion, the sentencing judge erred in her conclusion that the totality principle was not infringed by the sentence imposed by the magistrate.

63 In McDonald, the court mentioned [30] that cases decided since the coming into effect of the transitional provisions reveal that prison sentences are commonly imposed in the case of serious repeat offenders of the present kind. We gave, as examples, Austin v Grapes [2004] WASCA 102; Mason v Morrison [2004] WASCA 181; Anderson v Heath [2005] WASC 253; Rossiter v Francisty [2005] WASC 270; Anderson v Stilwell [2006] WASC 257 and Kearney v Rinaudo. We also said [31]:

The cases (including those to which we have referred) reflect some inconsistency in the length of the terms of imprisonment imposed for offences of this kind. For example, in Mason the appellant was sentenced, after a successful appeal by the prosecutor, to concurrent terms of 9 months' imprisonment on each of two charges, one of driving under suspension and the other of driving under the influence of alcohol with a blood/alcohol content of 0.245%. The appellant (who had pleaded guilty) had 11 prior convictions for driving under suspension and nine for driving under the influence. On the other hand, in Anderson v Stilwell sentences of 8 months' imprisonment, to be served cumulatively, were imposed in respect of two counts of driving under suspension. A further term of 4 months' imprisonment also to be served cumulatively, was imposed on a third count of driving under suspension in circumstances in which there were very powerful mitigatory features. The appellant in that case had 11 prior convictions for driving under suspension. In Kearney [v Rinaudo] the appellant was sentenced to cumulative terms of 8 months' imprisonment on two counts of driving under suspension. He had an extensive traffic record, including six prior convictions for driving whilst suspended.

64 In McDonald, the offender, like the appellant in the present case, had shown a repeated and blatant disregard for the law. On 6 March 2007 she was convicted of an offence of unlawful damage to property, driving while her licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so. She made an early plea of guilty to each of the offences charged. She had five prior convictions for driving with a blood alcohol content in excess of 0.08%. She had been convicted on nine previous occasions of driving while her driver's licence was suspended or cancelled. She also had a conviction for manslaughter and convictions for assault, disorderly conduct and burglary. Surprisingly, she had never previously been sentenced to a term of immediate imprisonment. After a successful appeal, she was sentenced to an aggregate term of 10 months' imprisonment. That was made up by a term of 5 months' imprisonment in respect of the offence of driving under suspension, a further term of 5 months' imprisonment, to be served cumulatively, in respect of the offence of reckless driving and a term of 3 months' imprisonment in respect of the offence of unlawful damage to property, to be served concurrently with the other sentences. Fines had been imposed in respect of the remaining offences.

65 In our respectful opinion these cases, when considered with the fact that the longest term of immediate imprisonment previously required to be served by the appellant was one of only 4 months, reveal that the total sentence imposed in the present case was so severe as to breach the totality principle. One of the limbs of that principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally: Woods v The Queen (1994) 14 WAR 341. The sentence imposed seems to us to have been plainly disproportionate to the appellant's overall criminality, when looked at in all of the circumstances to which we have referred.

67 That leaves the question what sentences should now be imposed.

68 Although the issue is now largely (but not entirely) academic, it seems to us that, taking into account the matters to which we have referred, and particularly the appellant's poor criminal record, the appropriate sentence to be imposed in respect of the offence of driving under the influence is one of 10 months' imprisonment. That allows for the operation of the transitional provisions and makes some allowance for the appellant's plea of guilty. We would leave undisturbed the other sentences imposed by the magistrate, which seem to us to make sufficient allowance for the transitional provisions and the pleas of guilty. However, for totality reasons, we would order that the sentences be served concurrently, save for that in respect of the later offence of driving under suspension. In that respect, we would order that the term of 9 months' imprisonment be served partly concurrently with the other terms imposed. That sentence should be taken to have begun after the appellant had served 3 months of the terms imposed in respect of the other offences. That would have the result that the total term of imprisonment required to be served by the appellant would be one of 12 months' imprisonment. As ordered by the primary judge, the total term of imprisonment should be taken to have commenced on 1 July 2006, the date upon which the appellant was taken into custody. The effect of that is that the appellant has already completed the sentences imposed. However, we would also

have ordered that she be eligible for parole. The disqualification orders made by the magistrate will remain in force.

69 We would allow the appeal and set aside the sentence imposed by the magistrate in respect of the charge of driving under the influence and the orders made by him in respect of cumulation and concurrency. We would also set aside his decision that the appellant should not be made eligible for parole. In lieu, we would impose the sentences and orders set out above.

70 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Steytler P, Wheeler, McLure and Buss JJA. I agree with the conclusions reached in that judgment in respect of each of the grounds of appeal, save for one aspect of ground 2. I also agree with the overall conclusion reached; namely, that the total term of imprisonment to be served by the appellant should be reduced to a term of 12 months' imprisonment with an order for eligibility for parole.

71 The one aspect of the judgment with which I do not agree is the conclusion reached in relation to the meaning of s 89(1) and s 89(4) of the Sentencing Act 1995 (WA). In particular, I disagree that s 89(1) of the Act has the effect of requiring a court to make a parole eligibility order unless two or more of the factors identified in s 89(4) of the Act are present.

72 In my opinion, s 89(1) of the Act gives to a court sentencing an offender, a discretion at large whether or not to order eligibility for parole. Section 89(4) qualifies the discretion by providing the circumstances in which a court may decide not to make a parole eligibility order.

73 The provisions of s 89(1) of the Act specifically provide that a court sentencing an offender to a fixed term 'may' (my emphasis) order eligibility for parole. They do not require an order for eligibility for parole unless the provisions of s 89(4) are operative.

74 Section 89(4) is a provision which gives to a court a basis upon which a parole eligibility order may be declined. It may be declined if at least two of four factors exist.

75 It follows that a parole eligibility order will ordinarily be made unless two of the four factors contained within s 89(4) of the Act are present. But that is not to say that a court must make an order for

eligibility for parole unless at least two of the four factors set out in s 89(4) are present. Nor does it mean that, when there are at least two of the four factors in s 89(4) present, a parole eligibility order shall not be made.

76 For the reasons I set out in Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248 at [57] - [63], I consider that a fundamental change was brought about by the substitution in 2003 of s 89(4) for s 89(2) of the Sentencing Act 1995. I repeat what I said in Piccolo:

I consider that even if there was once a bias towards eligibility for parole, there is not such a bias today. At the same time, there is no bias against parole. The sentencing Judge has a discretion not to make a parole eligibility order in the event that certain factors are revealed.

Nevertheless, considerations of rehabilitation of the offender and the interests of the community in having offenders rehabilitated are relevant to the determination of eligibility for parole pursuant to s 89(4) of the Sentencing Act 1995. [65] - [66]

I effectively repeated these observations in Ugle v The State of Western Australia [2007] WASCA 199 [72].

77 In Pickett v The State of Western Australia [2004] WASCA 291, I agreed with McKechnie J, who said much the same thing:

The appellant therefore satisfied all the criteria in s 89(4)(a), (b), (c) and (d) of the Sentencing Act. The grant or refusal of parole remains an exercise of discretion. The discretion remains at large despite s 89(4). However, when a Judge exercises a discretion to refuse parole in circumstances the discretion to do so is triggered by factors within s 89(4), it will be difficult to show a mis-exercise of the discretion. [7]

This, I consider, to be the proper interpretation of s 89(1) and s 89(4) of the Act.

78 In practice, nothing will really turn upon the difference between the interpretation favoured in the judgment of Steytler P, Wheeler, McLure and Buss JJA and that which I have adopted. This is because an order for eligibility for parole will ordinarily be made unless at least of the two of the four factors contained within s 89(4) of the Act are present. Where they are present and those factors, together with all other relevant factors, are taken into account by the sentencing judge, it will be difficult to show that any error has been made in the exercise of the discretion to decline to order eligibility for parole. In this respect, I agree with what has been said by Steytler P, Wheeler, McLure and Buss JJA.

Legislation Amendment and Repeal Act 2003

Community Corrections Act 1963

Administration Act 2003

MOODY -v- FRENCH [2008] WASCA 67 (20 March 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (162 paragraphs)

MOODY -v- FRENCH [2008] WASCA 67 (20 March 2008)

Showing a 'mis-exercise' of the discretion

'Serious' offences and 'significant' criminal record

Should a parole eligibility order be made?

Legislation Cited (4)

Cases Cited (16)