Supreme Court of WA|2007-08-17|Before: Johnson J

MOODY -v- FRENCH & ANOR [2007] WASC 190 (17 August 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOODY -v- FRENCH & ANOR [2007] WASC 190

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : PH 1057 of 2005, PH 1262 of 2006, PH 1263 of 2006, GN 2520 of 2006, GN 2521 of 2006

Traffic offences - Sentence - Effect of transitional provisions - Effect of a plea of guilty - Eligibility for parole - Whether sentence manifestly excessive - Backdating sentences - Whether sentences to be served concurrently or cumulatively - Totality principle

Sentencing Legislation Amendment & Repeal Act 2003 (WA), Sch 1 cl 2

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

1 JOHNSON J: The appellant, Hazel Aileen Moody, appeals against the sentences imposed on her in the Magistrate's Court in South Hedland on 11 August 2006 following her plea of guilty in relation to a number of offences under the Road Traffic Act 1974 (WA) ("the RTA"). The offences and penalties are set out in the following table:

s 49(1), (2)(a)(iii) RTA

2 The first two offences were committed on 26 May 2006 on Marble Bar Road, Nullagine, at 10.11 pm. The next two offences were committed a month later on 30 June 2006 in Newman Drive, Newman, at 2.40 pm. All four offences were committed whilst the appellant was subject to a sentence of suspended imprisonment imposed on 15 July 2005 for an offence of creating a false belief. As a result of the convictions for the driving offences, the appellant was ordered to serve the term of imprisonment which had been suspended.

3 At the time the first two offences were committed the appellant was under a lifetime licence disqualification imposed in 2003. The blood alcohol reading with respect to the excess 0.08 per cent offence was 0.138 per cent calculated to have been 0.120 per cent at the time of the offence. The blood alcohol reading with respect to the driving under the influence charge was 0.220 per cent calculated to be 0.214 per cent at the time of the offence.

4 The convictions for driving under suspension entered on 11 August 2006 were the appellant's tenth and eleventh convictions for driving under suspension or without a licence. The appellant also had a prior conviction for driving whilst under a fines suspension.

5 The conviction for driving with a blood alcohol level in excess of 0.08 per cent was the appellant's third conviction for that offence. The appellant also had a conviction for excess 0.05 per cent. The conviction for driving under the influence was the appellant's fourth such conviction. Therefore, at the time of being sentenced, the appellant had six prior convictions for offences of driving under the influence of alcohol.

6 In passing sentence the Magistrate had the benefit of a pre-sentence report. According to the report, the appellant acknowledged responsibility for all her current offences. However, her explanation for committing the offences was somewhat inconsistent with a full acceptance of responsibility. The appellant told the Community Corrections Officer that she had not initially intended to drive as she was aware that she did not have a valid driver's licence. She added that she had been drinking all afternoon and was certain that she would be "over the limit". The appellant claimed that she wanted to drive the car "later" when she was sober, however blamed her partner, who had a history of stand-over tactics and violence, for forcing her to drive. She claimed that her partner had been drinking a lot and "wouldn't take no for an answer". The appellant stated that, although she was aware that her actions were against the law, she drove the vehicle in an attempt to "keep the peace".

7 This account indicates that this was not a case where the appellant was too inebriated to be aware of what she was doing or to make an informed decision as to her fitness to drive. It is clear that the appellant was certain she was over the limit and knew that her actions were against the law but chose to drive in any event. Perhaps of even greater significance is the fact that the account shows the appellant's complete inability or unwillingness to address the factors which dramatically increase the likelihood of her driving when she has been drinking. It is clear that despite the extreme likelihood that the appellant would be drinking all afternoon, she made no arrangements to get home safely without driving. Indeed, it is clear that she and her partner went to the hotel in a car which, of itself, was highly likely to increase the prospect of her driving home. Further, the suggestion that she would drive the car "later" when she was sober is unrealistic to say the least. It indicates that she would be the one driving the car and also overlooks the fact that she did not have a driver's licence. It also under-estimates the pressures on a person to drive the vehicle home rather than wait around for whatever time it takes to sober up. Finally, it is clear that the appellant would be the one to drive the vehicle, whether drunk or sober, and her partner's propensity to become angry and violent if he did not get his own way was well known to the appellant. It was also clear to her that he, too, would be affected by alcohol. In those circumstances it would have been obvious to the appellant that there was a substantial risk of being put in the position of being required to drive home. In my view, it is abundantly clear that not only did the appellant fail to make any arrangements for getting home if she drank, the circumstances in which she placed herself increased the prospects of her drinking and driving. Her only choice in those circumstances was not to drink, something she was clearly unable to do.

8 The appellant did express regret for having committed the offences and stated that she was sorry for doing the wrong thing. However, although there is no suggestion that her expressions of remorse are not genuine, they must be considered in the context of the factors to which I have just referred.

9 The pre-sentence report states that the appellant has amassed a significant criminal history that commenced in 1983 at the age of 18 years for an offence of driving without a driver's licence. I note from her criminal history that thereafter, apart from the various traffic offences, she committed offences of unlawful damage, disorderly conduct, false name, unlawful use of a motor vehicle, stealing, breach of bail, false bail undertaking, escape custody, unlawful wounding, resist arrest, threatening words or behaviour, unlawful possession, assault and creating a false belief. I have identified the nature, although not the number, of the offences subsequently committed by the appellant because the community corrections officer's description of "nuisance type offences" does not, in my view, adequately describe the appellant's offending.

"It is evident that Ms Moody's current offences are indicative of a cycle of repetitive behaviour, given that she has had the full range of sentencing options afforded to her, none of which appear to have acted as a deterrent to discourage her from continuing to re-offend"

11 The report also includes a summary of the appellant's previous response to supervision. It states that the appellant has breached seven Work and Development Orders. A six month community based order imposed in March 2004, together with supervision and programme requirements, resulted in the appellant only attending one scheduled supervision session. The appellant was breached for non-compliance. As noted above, the suspended term of 9 months imprisonment imposed for the offence of creating a false belief was breached by the driving offences the subject of this appeal. However, they are not the extent of the non-custodial outcomes of which the appellant has had the benefit. She has been given good behaviour bonds and another recognisance, at least one of which was breached by re-offending. The appellant has received community release orders and a term of suspended imprisonment (in addition to the most recent one before this Court) which was breached by re-offending. The appellant's attitude to Court imposed obligations, other than licence suspensions, is also reflected in the 12 convictions for breach of bail, one of which was in relation to the grant of bail for the first group of traffic offences being considered in this appeal. The appellant did complete one period of home detention. The appellant has also been imprisoned on numerous occasions for periods of less than 12 months.

12 In terms of her family situation, the report discloses that the appellant had a very transient lifestyle when young as a result of her mother's death when the appellant was nine years old. She suffered abuse from one of the relatives that cared for her to which other family members turned a blind eye. The appellant describes her childhood as difficult. It is not surprising then that the appellant turned to alcohol at the age of 15 years and as an adult generally engages in binge drinking. According to the pre-sentence report, the appellant stated that once she begins drinking she finds it difficult to stop. She also acknowledged that her alcohol use contributes to her on-going offending behaviour.

13 The author of the pre-sentence report concluded that the appellant would benefit from the guidance and support offered by way of psychological counselling to address her continued use of alcohol as well as her ongoing issues surrounding her childhood abuse. The final view expressed was that, should the Court choose to impose a term of imprisonment, "then it is considered that Ms Moody may benefit from a period of parole in the future".

14 Following the appellant's pleas of guilty, her counsel advised the Court that she had been in custody since 1 July 2006. It was also said on the appellant's behalf that she had had a very hard life, being sexually abused by an uncle who was her carer at the time and who moved her around to avoid detection. Family members were said to be aware of the abuse but took no action. The Court was told that the appellant indulges in binge drinking to forget about her past.

15 Counsel for the appellant also submitted that the appellant had insight into her own behaviour and knew that she had done the wrong thing. It was said that the appellant had stated that she did not intend to re-offend and wanted to move to Perth to break the relationship with her de-facto whom she blamed for much of her behaviour.

16 The Court's attention was drawn to the fact that the appellant's last conviction for a traffic matter was on 7 April 2003, more than three years before. The submission made on the appellant's behalf was that she be placed on an order rather than imprisoned.

17 Having noted the dates of her first offences for drink driving and driving under suspension, the Magistrate made the following remarks:

"I've read the pre-sentence report. I don't have a magic wand. I can't change her lifestyle. She obviously consumes alcohol to excess on a regular basis. I don't believe I have any alternative but to impose custodial sentences. She was on a suspended term of imprisonment imposed on 15 July. She was obviously on bail after offending on 26 May 2006 when she was picked up on the second charges."

18 The Magistrate then referred to the appellant's background and the abuse she suffered before adding this comment:

"But to drive with the amount of alcohol you had in your blood, .214 on Newman Drive you're clearly a danger to other road users. As I said earlier, a lot of the deaths on our roads can be attributed to alcohol."

19 Having imposed the sentences set out above, the Magistrate ordered that the term of imprisonment for the driving under the influence charge was to be served cumulatively on the first driving under suspension charge. The term of imprisonment for the second driving under suspension charge was ordered to be served concurrently with the other terms. The term of imprisonment of 9 months for the Criminal Code offence, imposed as a result of the breach of the suspended term of imprisonment was also ordered to be served concurrently with the other terms. The Magistrate declined to order parole eligibility. The total term of imprisonment to be served in relation to all five offences was 21 months. The Magistrate explained his decision not to order parole eligibility on the basis of the appellant's record and the seriousness of the offending.

"1. The learned Magistrate erred by imposing 12 months imprisonment on Prosecution Notice GN 2520/06 by either failing to reduce the sentence by one third in accordance with the transitional provisions or alternatively failing to reduce the sentence imposed as a result of the plea of guilty.

The maximum sentence for driving under the influence contrary to s63(1) is 18 months imprisonment.
After reducing the sentence in accordance with the transitional provisions the maximum sentence without any reductions for a plea of guilty or other mitigating factors is 12 months imprisonment.
The learned Magistrate has either not applied the transitional provisions or failed to reduce the sentence for the plea of guilty.

The learned Magistrate has erred by failing to make the Applicant eligible for parole in particular the learned Magistrate has failed to take into account the fact that the Applicant has never received a term of imprisonment over 12 months before and has therefore never been subject to a parole order.
The learned Magistrate erred by imposing a sentence that was manifestly excessive particularly having regard to:
1. Personal circumstances
2. Plea of guilty
3. Totality of criminality of the offending behaviour"

21 The ground of appeal relates to the offence of driving under the influence for which the appellant was sentenced to a term of 12 months imprisonment where the maximum sentence for the offence is 18 months. It is said that the Magistrate either failed to reduce the sentence by one third in accordance with cl 2 of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("the transitional provisions") or, in the alternative, failed to reduce the sentence imposed as a result of the appellant's plea of guilty.

22 The appellant did not immediately enter pleas of guilty. In relation to the first two offences, it appears from the Prosecution Notices that it was not until the third appearance on 7 July 2006 that a plea of guilty was entered and a pre-sentence report ordered. By that time the appellant had committed the two further offences and, according to the relevant Prosecution Notices, pleaded guilty to those offences as well. There were two further appearances in relation to each of the offences, the last of which was the date on which the appellant was sentenced.

23 It is the case that the Magistrate failed to specifically refer to either factor when passing sentence. However, earlier in the proceeding specific reference was made to the guilty plea in relation to at least two of the offences, as appears from the following exchange:

"HIS HONOUR: Yes. I have the pre-sentence report. Now, she pleads guilty in front of me to an .08 offence and driving under suspension on - -

COAMANO, MR: I wasn't aware that was in front of your Honour, yes, but she has pleaded guilty to the charges, yes.

HIS HONOUR: She has. And there are two further charges; a DIU and driving under suspension. Just briefly, what are the facts, Sergeant?"

24 Although the transcript does not include the pleas being taken, it is abundantly clear that the Magistrate was aware that all the charges before him were subject to pleas of guilty. There is, in any event, 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]. There is authority for a similar approach with respect to the application of cl 2 of Sch 1 of the transitional provisions: Worthington v The State of Western Australia [2005] WASCA 72 per Steytler P at [28] and per Pullin JA at [80].

25 In the course of the hearing I raised with counsel for the parties the issue of whether the transitional provisions applied to terms of imprisonment of 12 months or less. I did so because this issue had been raised in relation to another appeal heard around the same time as this one. The suggestion made was that, as the purpose of the transitional provisions was to counteract any unfairness created by changes to the parole system, and as parole orders could not be made in relation to sentences of that length either before or after the changes, the transitional provisions did not apply.

26 Following the hearing of this appeal counsel for the Respondent provided to the Court detailed and very helpful submissions on this issue. In the interim, I had considered the decision of the Full Court in Worthington v The State of Western Australia and, in particular, the judgment of Pullin JA in which his Honour clarifies this issue by setting out the history of the sentencing legislation before explaining how the transitional provisions came to be introduced: at [57] - [71]. It is apparent from both the State's submissions and the historical account referred to by Pullin JA that the origin of the transitional provisions lie in the abolition of the one third remission of sentence to which prisoners were once entitled and, although changes were made to the parole system to, in effect, maintain the one third remission, the reduction of terms of imprisonment by one third in the transitional provisions is not related to the change in the parole release formula.

27 Clause 2 of Sch 1 of the transitional provisions provides that a Court sentencing an offender to a fixed term of imprisonment must impose a term that is two thirds of the fixed term the Court would have imposed prior to the new legislative provisions. The correct approach under the transitional provisions is to first determine an appropriate sentence and then reduce it by one third: Cooper v Yates [2005] WASC 34 at [15]; Bakdadi v O'Neill [2003] WASCA 267 at [5] and [8].

28 In Worthington v The State of Western Australia, Pullin JA referred (at [75]) to cl 2(4) of the transitional provisions which reads:

"A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause."

29 Pullin JA noted (at [76], [79]) that at some undefined time, Courts may, by experience, develop attitudes to sentencing under the new provisions which will become the "practice" of the Court. However, his Honour considered that it was too early to say that the transitional provisions do not apply. In my view, the transitional provisions applied at the time the appellant was sentenced.

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, which has a maximum of 18 months in this case, the maximum sentence is 12 months.

31 Under s 8(4) of the Sentencing Act 1995 (WA), if, because of a mitigating factor, a court reduces a sentence it would otherwise have imposed on an offender, the court must state that fact in open court. It is well established that a plea of guilty by an offender is a mitigating factor: Chivers v The State of Western Australia [2005] WASCA 97 per Steytler P at [17]. Indeed the principle is now enshrined in legislation: see s 8(2). In Fullgrabe v The State of Western Australia [2006] WASCA 138, per 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, as is made clear from the precise terms of s 8(4).

32 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, his Honour 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.

33 Steytler P also observed (at [10]) that the sentence will not be overturned because of a failure to comply with s 8(4) if the appellate court 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). It is necessary then for the appellate court to consider the sentence itself to determine whether it reflects all relevant factors, including the plea of guilty.

34 There is no provision similar to s 8(4) of the Sentencing Act 1995 with respect to reducing a sentence by reason of the transitional provisions and, as I have noted above, I would not be prepared to accept that the Magistrate was unaware of the existence and effect of the transitional provisions simply because he made no specific reference to it. In my view, many of the principles identified by Steytler P in "H" v The State of Western Australia with respect to the reduction to sentence resulting from a plea of guilty apply equally to reducing the sentence as a result of the transitional provisions. Consequently, I consider the role of the appellate court in such circumstances similarly involves considering the sentence to determine whether it reflects the deduction of one third as well as any necessary reduction for the plea of guilty.

35 Before considering whether the sentence imposed reflects all relevant and necessary considerations, it is useful to consider the principles relating to the mitigatory effect of a plea of guilty. The extent of a reduction in sentence resulting from an early plea of guilty usually falls somewhere between 20 per cent and 35 per cent: Ryder v Abbott [2007] WASC 41 at [34] per Templeman J; "H" v The State of Western Australia at [9] per Steytler P. Factors which influence the extent of the discount are the timing of the plea of guilty, remorse, acceptance of responsibility and the general interests of the administration of justice: see Cameron v The Queen (2002) 209 CLR 339; "H" v The State of Western Australia at [12].

36 In "H" v The State of Western Australia 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: see also 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.

37 In this case, it is apparent, once the reduction in accordance with the transitional provisions is taken into account, that the Magistrate imposed the maximum sentence with no discount given for the plea of guilty. However, even if the Magistrate failed to give a discount for the plea of guilty, this does not of itself give rise to an appellable error: Findlay v The State of Western Australia at [32]. As Martin CJ observed (at [34]):

"Secondly, while s 8(2) provides that a plea of guilty is a mitigating factor, and the cases provide guidance as to the extent of the discount usually given, whether the mitigating factor will in fact result in a reduction of sentence, and the extent of that reduction, will depend critically upon all the facts and circumstances of the particular case and cannot be constrained by hard and fast rules."

38 In particular, Martin CJ considered that, where an offender is caught red handed and has no possible avenue of defence, an early plea of guilty may simply reflect an offender's recognition of the inevitable, rather than show remorse or contrition. His Honour stated that in those circumstances, an early plea of guilty may reflect nothing more than an appreciation of the inevitable outcome of the proceedings and not revel any particular insight or perception of the significance of the offender's misconduct: at [34].

39 In this case, the appellant was stopped by police as she was exiting the driveway of the Red Sands Tavern. The basis of the charge is the result of the breath analysis test conducted by police back at the Newman Police Station. There was no viable defence open to the appellant in those circumstances. Further, although the appellant pleaded guilty at the first opportunity, she did so being at that time already before the court and already on bail for two driving offences, one of which also related to driving whilst intoxicated. In those circumstances, the early plea of guilty reflected the inevitability of the outcome.

40 Further, whilst the appellant did acknowledge responsibility, her explanation apportioned a degree of the blame to her partner for making her drive. However, it is apparent from the circumstances that the appellant deliberately drove, without a licence, to the hotel to drink for the afternoon thereby creating the situation where it was highly likely she would leave the hotel in her car. It is also difficult to accept the legitimacy of the appellant's remorse when she committed this offence whilst on bail for two almost identical offences. It is apparent from the pre-sentence report that the appellant, both when sober and intoxicated, was well aware that she was not legally entitled to drive but chose to do so out of convenience and the desire not to anger her partner. In my view, these factors are a sufficient justification not to reduce the sentence as a result of the plea of guilty.

41 It is also the case that, as the Magistrate observed before passing sentence, offences of this type are not uncommon in communities in the north and are continuing to occur with little being done to curb their occurrence. In such cases, and particularly in cases where the offender has a repeated history of flagrant disregard for the safety of other road users, the protection of the public must be the paramount concern. Therefore, when determining the appropriate sentence, deterrence both personal and general must be the dominant factor: see Findlay v The State of Western Australia per Martin CJ at [23].

42 When these factors are added to the blood alcohol reading of .214 per cent at the time of driving, the fact that this is the third conviction for driving under the influence but the sixth offence of driving whilst intoxicated, I consider it was open to the Magistrate to impose the maximum available term.

43 I note that in Findlay v The State of Western Australia the imposition of the effective maximum term of imprisonment of 12 months for driving under the influence was considered not to be excessive. The appellant in that case had previously driven with excessive alcohol in his blood or under the influence of alcohol on 11 prior occasions and the circumstances of the particular offence were similar to the circumstances of this appellant's offence. In particular, the alcohol levels were similar, no accident resulted from either incident of driving and, because they were apprehended by police and breathalysed, in effect they had no conceivable avenue of defence: per Martin CJ at [35]. As I have noted, in this case this is the appellant's sixth offence of driving whilst intoxicated. In my view, that is not a sufficient basis upon which to distinguish the decision in Findlay v The State of Western Australia. Where there is a comparatively low maximum sentence, there is a point beyond which further offences of the same type cannot attract any higher sentence because the maximum has been reached or should have been reached previously. The number of offences required to reach that point will depend on the circumstances of the offence and the offender. In my view, a sixth offence of this type in the circumstances to which I have already referred is well deserving of the maximum.

44 Even if I had formed a contrary view, it would be necessary for the appellant to establish that the total sentence for the two separate courses of conduct and the term now to be served of the previously suspended sentence are manifestly excessive: see Findlay v The State of Western Australia at [36]; Sheppard v Blakey [2001] WASCA 309. As this is a separate ground of appeal I will deal with it later in these reasons.

45 This ground alleges that the Magistrate erred in failing to make the appellant eligible for parole. It is said that the following factors should have resulted in a grant of parole:

Never received Court parole before;
Hard life and was sexually abused by uncle;
Binge drinker; and
Willing to undergo psychological counselling.

46 Section 89(1) of the Sentencing Act 1995 confers a general discretion to the Court to grant or refuse parole. There is no longer a presumption in favour of parole: see Findlay v The State of Western Australia at [29].

47 Section 89(4) reads:

"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."

48 As noted above, in passing sentence the Magistrate declined to order parole eligibility on the basis of the appellant's record and the seriousness of her offending. The reasons given, therefore, correspond with s 89(4)(a) and s 89(4)(b). In Pickett v The State of Western Australia [2004] WASCA 291, McKechnie J (with whom Miller and McLure JJ agreed) concluded at [7] that, where the sentencing court exercises a discretion to refuse parole in circumstances where the discretion to do so is triggered by factors within s 89(4) of the Sentencing Act 1995, it will be difficult to show a mis-exercise of the discretion.

49 I believe it is important at this point to acknowledge the oft-stated principle in relation to the review of discretionary decisions: An appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Judge: Lowndes v The Queen at 671 - 672. The appellant must persuade the court that the decision manifests error of fact or law discerned from the reasoning or the circumstances of the case.

50 Counsel for the appellant submits that the Magistrate has overestimated the appellant's record in that she has never received an actual term of imprisonment greater than 4 months and suspended sentences of only 9 months or less. It is submitted that a record which discloses that a person has never received a term greater than 12 months in the past (and therefore has not been subject to court ordered parole) could not be classified as a "significant record" as stated in s 89(4)(b).

51 In my view, counsel's submission completely misunderstands the meaning of the term "significant" in this context. 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.

52 In this case the appellant's record contains quite a number of driving offences, in particular driving offences involving alcohol. As noted above, the appellant has now committed six driving offences which involved the consumption of alcohol. The number of offences of driving whilst unlicensed support a conclusion that the appellant is not deterred from this type of offending, notwithstanding the restraints placed on her by the court. Also, the appellant's record contains a number of convictions for offences which are commonly related to alcohol abuse such as disorderly conduct, consuming liquor in a public place and resisting arrest. These offences indicate that there is an underlying cause of the offending which increases the risk of the conduct being repeated. The offences of breaching bail are another indicator of non-compliance with court imposed restraints.

53 This approach to the significance of the criminal history to parole eligibility has the support of authority. In Swain v The Queen (1989) 41 A Crim R 214, Malcolm CJ held (at 218) that, where the antecedents of the offender show a series of prior convictions for similar offences, this would tend to show that the offender is a poor parole risk and suggest that an eligibility for parole would not be appropriate.

54 In my view, the absence of previous parole orders, as well as performance whilst on parole, is relevant to determining parole eligibility. However, the absence of a previous parole order does not require that parole be granted. There are other ways of determining the appellant's response to community based supervision. 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.

55 For these reasons I consider the Magistrate was entitled to rely on the appellant's significant record as a factor militating against eligibility for parole.

56 I also consider that the offence of driving under the influence is a serious offence. Again, it does not follow from the fact that short terms of imprisonment or dispositions other than imprisonment have been imposed when previously dealing with the appellant, that the offence is not serious. In many cases such an outcome is more a reflection of the personal circumstances of the offender, than the minor nature of the offence.

57 The Magistrate correctly pointed out that, in driving with the amount of alcohol that the appellant had in her blood, she was a danger to other road users. That is particularly so when the driving occurred in the main street at 2.40 pm in the afternoon and was the latest occurrence in a repeated history of flagrant disregard for the traffic laws and the safety of others. The adverse impact of alcohol on driving ability and judgment is well established. Therefore, the fact that neither the appellant nor other road users were injured was entirely a matter of good fortune.

58 As to the factors which should, according to counsel for the appellant, result in granting parole, I have already addressed the effect of the absence of any previous parole order. The second factor, that the appellant has had a hard life and has suffered abuse, was specifically referred to by the Magistrate before passing sentence and does not, of itself, provide a sufficient basis to order parole eligibility. The fact that the appellant is a binge drinker is something that is abundantly apparent from the nature of the appellant's offending and is expressly stated in the pre-sentence report. There can be no suggestion that the Magistrate was not aware of that factor. However, in my view, it is not a factor which supports the grant of parole. Indeed, it is a factor which not only explains the appellant's offending, it also indicates why she continues to re-offend and dramatically decreases the likelihood of the appellant successfully completing any period of parole.

59 The fact that the appellant has stated to the community corrections officer her willingness to undergo psychological counselling is not, of itself, sufficient to establish that the Magistrate was in error in declining to order parole eligibility. Even if that intention is genuinely held, there is ample evidence in the appellant's history of offending and her previous response to supervision as outlined in the pre-sentence report, to raise legitimate concerns about the likelihood of the intention being put into effect. In particular, the appellant's previous response to a supervision and programme requirement was attending to one scheduled supervision session. Further, it is clear that at no stage has the appellant taken any steps to overcome her drinking problem.

60 Section 89(4) of the Sentencing Act 1995 provides that a court may decide not to make a parole eligibility order if at least two of the four factors referred to above are present. The Magistrate has relied on two factors which, in my opinion, were open to him on the evidence. He has therefore exercised his discretion in accordance with the relevant legislative provision. As Martin CJ observed in Findlay v The State of Western Australia (at [30]):

"In that circumstance, the appellant bears a heavy onus to show that the exercise of the discretion specifically conferred by the statute miscarried."

In my view, the appellant has failed to establish any error on the part of the Magistrate in regard to his decision not to order parole eligibility.

61 In this ground the appellant alleges that the Magistrate erred by imposing a sentence that was manifestly excessive. It is apparent from the submissions on behalf of appellant that it is the total sentence imposed by the Magistrate on 11 August 2006 to which this ground of appeal refers.

62 Therefore, it is necessary for the appellant to establish that the sentence of 21 months imprisonment was excessive taking into account the circumstances of all the offences and all matters of mitigation. In this regard, it is important to note that there is no specific ground of appeal alleging error with respect to any of the sentences imposed other than in relation to the charge of driving under the influence. I have already concluded that the sentence imposed for that charge does not manifest error.

63 With respect to the offences of driving under suspension it is important to recognise that they were wholly unrelated in time and place. Further, the second offence of driving under suspension was committed whilst the appellant was on bail for the first such offence. Because of that factor and the even greater need for the sentence imposed to reflect the need for personal deterrence, the sentence for the second offence can justifiably be greater than that imposed for the first.

64 As I observed in Dearnley v Damon [2007] WASC 124 at [48] having reviewed the relevant authorities, the offence of driving under suspension has long been accepted as a particularly serious offence, particularly in circumstances where the commission of the offence involves a willed defiance of the law and a willed disobedience of the order of suspension made by the court: see also Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 per Murray J at 7 - 8; Milentis v Chitty (1989) 9 MVR 423 per Walsh J at 426; Eldridge v Bates (1989) 51 SASR 532 per King CJ at 533. It is because of the defiance of the law which is a fundamental to the commission of the offence, as well as the need to protect the public, that requires the sentences imposed for driving under suspension to be specifically and generally deterrent: Dearnley v Damon at [49]; Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999 per Miller J at 10 - 11; Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 per Miller J at 16 - 17.

65 The maximum penalty for subsequent offences of driving under suspension is 18 months imprisonment. Taking into account the transitional provisions, the maximum term of imprisonment which may be imposed is 12 months. The penalty imposed by the Magistrate with respect to each of the two offences was 9 months. In my view, in the circumstances of the offences which have been referred to earlier in these reasons, in particular the fact that these were the appellant's tenth and eleventh convictions for this offence, it cannot be said that sentences of 9 months are outside an appropriate discretionary range. Indeed, as I have noted, an even higher sentence for the second offence could be justified.

66 The next issue for consideration is the method by which the Magistrate reached the total period of 21 months imprisonment. In this regard, it is important to emphasise that the driving offences consist of two groups of two offences committed one month apart, the second of which were committed whilst on bail for the first group. Further, both groups of offences were committed whilst the appellant was subject to a term of suspended imprisonment for an offence of creating a false belief which was unrelated in time and place from the driving offences.

67 The Magistrate ordered that the term of imprisonment for the driving under the influence charge which was one of the second group of offences should be served cumulatively on the sentence imposed for the driving under suspension charge from the first group of offences. The term of imprisonment for the offence of creating a false belief, the suspension of which was breached by the commission of the driving offences, was ordered to be served concurrently with the other terms of imprisonment imposed. It was in that way that the total sentence of 21 months imprisonment was reached.

68 It is a general rule of sentencing, often referred to as the "one transaction rule", that where a number of offences are committed as part of one multi-faceted course of criminal conduct, either as part of a single transaction or of a continuing episode, any terms of imprisonment are to be made concurrent: see McDonald v White [2007] WASC 138 at [131]; R v Faithfull [2004] WASCA 39 per McLure JA at [28]. Conversely, where the offences are not part of one multi-faceted course of conduct but are wholly unrelated and independent of each other, then the appropriate course is to order that the sentences for the offences be served cumulatively.

69 Therefore, in accordance with principle, whilst the offences within each of the two groups of driving offences could properly be directed to be served concurrently with each other, the total sentence for the second group of driving offences should be ordered to be served cumulatively on the total sentence for the first group of traffic offences. This is exactly what the Magistrate did and was, therefore, in accordance with principle. However, in accordance with the same principle, the sentence now ordered to be served for the offence of creating a false belief, being wholly unrelated in nature, time and place, should have been ordered to be served cumulatively on either the total sentence for the first group of offences or the total for the second group of offences. That would bring the total term of imprisonment to 30 months.

70 When it came to ordering that the appellant serve the term of imprisonment for the offence of creating a false belief, the Magistrate made this statement: "I won't add that to your current sentence which totals twenty one months". In my opinion, it is clear that the Magistrate was applying the "totality principle" when determining not to order that the sentence for the offence of creating a false belief not be served cumulatively.

71 In Vlek v The Queen, unreported; SCt of WA; Library No 990153C; 29 March 1999, Anderson J noted (at 6) that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences: Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517. His Honour referred to the totality principle in the following terms:

"The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole."

72 In Karolides v The State of Western Australia [2006] WASCA 240 McLure JA observed at [5] that there are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of the totality principle is that the Court should not impose a "crushing" sentence. The word crushing in this context connotes the destruction of any reasonable expectation of useful life after release: see also Woods v The Queen (1994) 14 WAR 341 and Martino v State of Western Australia [2006] WASCA 78 at [16].

73 It is apparent that the Magistrate was acting in accordance with the totality principle when he declined to further increase the total sentence and ordered the term of imprisonment which had previously been suspended be served concurrently with the other terms imposed. In my view, it cannot be said that the sentence of 21 months imprisonment is a "crushing" sentence. The relevant issue is whether the total effective sentence of 21 months bore in all the circumstances a proper relationship to the overall criminality involved in all the offences.

74 Counsel for the appellant raises a number of factors which are said to establish that a total sentence of 21 months imprisonment is manifestly excessive. Reference is made to the fact that the appellant's criminal history discloses that this was her tenth and eleventh offence of driving under suspension and her fourth for driving under the influence and reference is also made to the years in which the offences were committed. In my opinion, the number of prior convictions for the relevant type of offence increases the criminality of the conduct. I can only conclude that this information was referred to in order to identify that six of the driving under suspension charges were over 10 years old and the last driving offence was committed in 2003.

75 It is the case that six of the convictions for driving under suspension were over 10 years old but that is simply because the appellant has been offending on a relatively regular basis since 1992. The chronology of driving under suspension offences contained in the appellant's submissions indicates that the appellant commenced offending in this way in 1992 and has committed one or more offences of that type every year or two for approximately the first 10 years and every three years in more recent times. In that context, the fact that some of the previous convictions are more than 10 years old is hardly mitigating. Further, it must also be taken into account that the appellant's offending for this offence does not reflect the only offending during the period of time in the chronology provided. The appellant's criminal history indicates that once or twice in every year except for 1999 and 1993 she has been dealt with for a number of usually drink related offences and for breaching bail and various non-custodial sentencing options.

76 The fact that the appellant has not committed any driving offences since 2003 does not reduce the overall criminality involved in the group of offences before the court. As I have already noted, various drink related offences were committed in the period between 2003 and the first group of driving offences. Further, during that period the appellant had been placed on community based orders and received two separate terms of suspended imprisonment, each of which was breached by re-offending. Even if the appellant had not committed any driving offences, she had certainly been continuing with her offending behaviour. In any event, even if it were accepted that the appellant had not committed any traffic offences since 2003, the fact is that in 2006 the appellant again commenced offending in that way, as is evidenced by the fact that she committed not only one set of driving offences but a month later, whilst on bail, committed another set of driving offences. In those circumstances, little, if any, significance can be attributed to the factors raised by counsel about the lack of continuity in the appellant's offending.

77 It is further submitted on behalf of the appellant that, support for the ground of appeal can be found in the fact that the appellant has not previously received an actual term of imprisonment for an individual offence of greater than 4 months, or a term of suspended imprisonment of more than 9 months, or received a total term for a number of offences of more than 12 months. It is also said that when these factors are considered together with the comparison of cases outlined in Rossiter v Francisty [2005] WASC 270, it is apparent that the sentence imposed by the Magistrate in this case was excessive.

78 In Rossiter v Francisty, McKechnie J dealt with an appeal against a series of sentences imposed on the appellant for offences of driving under suspension. The total sentence imposed was 14 months imprisonment. The appellant had a very bad driving record but had committed no driving offences from 1992 to 2004. However, from 15 July 2004 to 4 March 2005 the appellant committed, on four separate occasions, offences of driving under suspension. In all but one of those occasions the appellant also committed offences of driving an unlicensed vehicle. On the first occasion he also committed the offence of excess 0.05 per cent. Although the appellant in that case committed four separate offences of driving under suspension, the primary distinction between those facts and the facts in this appeal is that the offending was not coupled with charges of excess 0.08 per cent, which is considered of far greater seriousness than a 0.05 per cent offence, or of driving under the influence which is of an even greater level of seriousness.

79 Before reaching his conclusion, McKechnie J made the following observation (at [6]):

"This court has on many occasions emphasised the need for strong deterrence for persistent offences of driving whilst suspended. The reasons for this have been explained in various cases. One of the reasons is that if a person has an accident they are uninsured and that brings about all sorts of problems. More particularly, however, there is a deliberate breaching and defiance of the law in this type of offending that requires punishment."

80 Despite this emphasis on the seriousness of offences of this type, his Honour concluded that the total of 14 months imprisonment was excessive. By reference to a schedule of offences and outcomes prepared by the respondent and to what his Honour described as "the range of sentences customarily imposed", McKechnie J concluded that it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant and it is especially rare for a sentence to be imposed without parole eligibility. It is apparent that the conclusion drawn by his Honour was based entirely on the content of the schedule. The sentence imposed on appeal was a total of 8 months imprisonment.

81 With respect to McKechnie J, the comment about parole is simply an observation based on the outcomes included in the schedule. I do not understand his Honour to be linking the issue of parole eligibility with a particular sentence or range of sentences. I have drawn that conclusion because the decision on parole eligibility is highly dependent on the individual circumstances of each offender and therefore cannot be related to particular sentences. Further, it is not open for a sentencing Judge to take into account whether or not an offender will be eligible for parole when determining the appropriate sentence to impose for an offence: see Swain v The Queen at 216.

82 As to the proposition that sentences of 14 months for driving under suspension are a rarity, even for serial offenders, I have on other occasions commented adversely on the usefulness of schedules of this type because, in my view, they present a snapshot of cases that does not necessarily reflect the sentences regularly being imposed at first instance and can be misleading. Most importantly, however, they rarely contain sufficient background information to obtain an informed understanding of the reasons behind the particular sentence imposed: see McDonald v White per Johnson J at [121] - [125].

83 Even if I were to accept the view that a total sentence of 14 months for a number of driving under suspension charges is a rarity, I am not persuaded that the decision in Rossiter v Francisty provides a basis for concluding that the total sentence imposed on the appellant in this case was manifestly excessive. The sentence substituted for 14 months in Rossiter v Francisty was 8 months which was achieved by imposing an 8 month term in relation to one offence of driving under suspension, coupled with some associated charges of driving an unlicensed vehicle with altered number plates, and directing that all other sentence be served cumulatively. On that basis an offence of 8 months was considered appropriate for one group of offences and, despite the further offending of a like nature that was also considered to be the appropriate penalty for a number of such charges.

84 In this case, the sentence imposed for driving under suspension was 9 months. In my view, that sentence is sufficiently close to that set by McKechnie J so as not to manifest error. Significantly, the Magistrate in this case did not order that any further offence of driving under suspension be accumulated on that sentence. What was ordered to be accumulated was the very serious offence of driving under the influence which is not a matter dealt with in Rossiter v Francisty. In my view, the commission of that offence, together with the earlier offence of excess 0.08 per cent takes the total criminality of the appellant's conduct well outside the range of the 9 month term imposed for driving under suspension.

85 I have reached the conclusion that the matters on which the appellant relies do not support the proposition that the total term of imprisonment imposed was excessive in that it did not reflect the total criminality of the appellant's conduct. That is particularly so because in this case, there was a third and completely unrelated offence, the criminality of which should, in accordance with principle, have been added to the total of the term imposed for the driving offences but was not.

86 On behalf of the State it is submitted that the totality of the sentence imposed was appropriate to the criminality of the conduct involved, given that the offences in question were committed on three separate occasions, the two alcohol related offences involved exposure of the public to danger and the appellant's record reflected an attitude of continued disobedience to the law. I accept that proposition and add to it the nature of the third offence. When the criminality of that conduct is added to the total criminality of the appellant's conduct, but the sentence is not added to the total sentence, it cannot, in my view, be said that the total sentence imposed was excessive.

88 In this ground, the appellant alleges that the Magistrate erred in failing to order that the sentences commence to run from the date she was taken into custody. Leave was sought at the hearing of the appeal to add this ground. The attitude of the State was neither to object nor consent to the making of the order. Counsel for the appellant advised the court that the issue had been overlooked by him in drafting the grounds of appeal. However, on re-reading the transcript in preparation for the hearing he noticed that it was in said in the plea in mitigation that the appellant had been in custody since 1 July 2006. However, there was no reference to this factor in passing sentence,

89 In my view, although it is the responsibility of the Magistrate to back date offences where appropriate, it is in my experience something which is easily overlooked unless reminded by counsel, which did not occur in this case. It is also evident from the transcript that the issue was not considered and rejected by the Magistrate.

90 In circumstances where the appellant's counsel has been frank in explaining the omission and because I cannot see any prejudice to the State and no prejudice is claimed, I consider it appropriate to grant leave to include the additional ground.

91 As I have noted, the appellant's counsel at the time of sentence advised the court that the appellant had been in custody in relation to the offences since 1 July 2006. There is no suggestion from the material in the affidavit that there was any other reason for the appellant being in custody from that date. Neither has the State raised any such reason in submissions.

92 Section 87 of the Sentencing Act 1995 provides that where an offender is being sentenced to imprisonment and has previously spent time in custody in respect to that offence and for no other reason, then the sentencing court may decide that that time should be taken into account. Section 87 sets out two ways in which time in custody may be taken into account: The first is by reducing the sentence imposed to reflect the time in custody and the second is by ordering that the sentence imposed is to commence on the day the offender was taken into custody.

93 It is apparent from the terms of s 87 that there is a discretion in the sentencing Judge or Magistrate to take into account time spent in custody or some portion of that time. There will no doubt be circumstances in which it is entirely appropriate to decline to make an order taking into account time spent in custody or to take into account only part of that time. However, in my view, those circumstances do not apply in this case.

94 In my view, the Magistrate omitted to deal with this issue rather than declined to take the time in custody into account. Further, in the circumstances that here apply, it is only fair that the appellant spends no longer in custody than was considered appropriate for the offences she committed. Therefore, I accept the appellant's submission that the Magistrate was in error in failing to order that the sentence commence on 1 July 2006.

95 Because of the outcome in relation to the other grounds of appeal, rather than remit this matter to the Magistrate to be de dealt with, I propose to allow the appeal on this ground only and order that the sentence imposed on 11 August 2006 commenced to run on 1 July 2006.

Legislation Amendment and Repeal Act 2003

MOODY -v- FRENCH & ANOR [2007] WASC 190 (17 August 2007)

At a glance

Court

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Judgment (121 paragraphs)

MOODY -v- FRENCH & ANOR [2007] WASC 190 (17 August 2007)

Legislation Cited (4)

Cases Cited (7)