Citation : RO 12521 of 2008, PE 68982 of 2008, RO 2469 of 2009, RO 2471 of 2009, PE 16047 of 2009, PE 14904 of 2009, PE 22572 of 2009 and PE 41429 of 2009

Road traffic - Sentence - Driving while disqualified - Immediate imprisonment - Whether excessive

Respondents : State Solicitor for Western Australia

(This judgment was delivered extemporaneously on 4 December 2009 and has been edited from the transcript.)

1 On 12 August 2009 the appellant was sentenced for five counts of driving under suspension; one charge of possession of a licence calculated to deceive; one charge of possession of heroin; and two charges of breach of bail. The matter had a history. He had previously appeared before the magistrate in May 2009 on two occasions when she referred him to the Drug Court for assessment. Subsequently, the appellant was assessed as unsuitable for the Drug Court and returned to the magistrate for sentencing.

2 The magistrate imposed cumulative terms of 3 months' imprisonment for each offence of driving; 1 month concurrent for possession of heroin; 2 months concurrent for breach of bail protective bail conditions; and 2 months concurrent for breach of bail. In respect of possession of a licence calculated to deceive he was fined. In the course of her comments the magistrate made one error of principle and one error of fact. The error of principle was in response to a question about community orders. She said, 'I never give these for these', or words to that effect.

3 If that was a blanket statement then it was a wrong statement. I do not attribute too much to it, however, because magistrates and judges sometimes say things without necessarily thinking through the consequences. In any event the real question is whether the magistrate's ultimate decision was right. She also, perhaps understandably, thought that the appellant had failed to appear in Court on more occasions than he had but that does not appear to have had much impact on her overall sentencing.

4 The appellant was convicted of driving while under fines suspension on 20 October 2006. On 11 July 2007 he was convicted of driving under suspension, the driving having occurred on 14 December 2006. On 27 June 2008 he was convicted of driving under suspension, the driving having occurred on 6 May 2008. His explanation that somehow he was under a misapprehension is, quite frankly, incredible. He argues that the five offences of driving under suspension were, therefore, collectively the third convictions of driving under court suspension. That is not quite right. The first of them was the third offence, even though not all were dealt with for some time. In respect of one of them he had a licence which was a false licence, indicating that he clearly knew what he was doing and he clearly knew he should not be driving. At the time of sentence the appellant was a person who had driven under court ordered suspension seven times and under fines suspension once.

The learned magistrate erred in law by failing to give adequate consideration to sentencing options other than immediate imprisonment and failed to give adequate consideration to suspending the sentence of imprisonment.

6 In the course of sentencing the magistrate received an oral pre-sentence report. The Community Corrections Officer said that the appellant was willing to do some community work, which provoked the comment to which I have referred from the magistrate. Of course, both the Sentencing Act 1995 (WA) and the Road Traffic Act 1974 (WA) allow for the possibility of a community based order. On 14 May the magistrate, before referring to the Drug Court said:

[M]y view is, Mr Moore, that you have reached the stage where I've got no choice other than to imprison you for an extremely long period of time within the legislation and it's just whether I make it concurrent or cumulative, and if there is some hope for you, the only hope that I can see is through a regime such as the Drug Court. (ts 10)

[W]e have agreed with everything you have said. Mr Moore is under no illusions that today he is looking at a term of imprisonment for these offences ... the only salient issue for the court to consider ... is whether or not the factors that are outlined today enable him to take advantage of a monitored drug program, be it residential or something that allows him for contact and supervision as well as a program requirement outside of the Drug Court regime ... (ts 11)

8 Counsel then suggested an intensive supervision order and her Honour said, 'I don't deem it being appropriate'. As her Honour correctly commented:

I think the first thing that he really has to do is deal with the drug problem before he can do anything else. (ts 12)

9 He has not dealt with it. Between the period of May and August, when he was referred back to her Honour to be sentenced, he was assessed as unsuitable for the Drug Court. The report was not favourable. He had continuing problems with drugs. His performance between May and August confirmed that a community based option was really out of the question, and so also was a suspended sentence probably, because having regard to the number of offences and all the circumstances, the only realistic sentence was one of imprisonment. The only question was whether it should have been immediate or suspended.

10 The magistrate had made up her mind in May about imprisonment but still looked at another option to see if there was some hope. No hope was demonstrated. In all the circumstances, it cannot be shown the magistrate was in error in failing to suspend the term of imprisonment. The appellant's record demonstrates a serious disrespect for authority, which had to be balanced against the other matters of mitigation, including of course the plea of guilty, the appellant's efforts at overcoming his entrenched drug addiction, a medical difficulty associated with his partner relating to the eventual birth of their child, and his efforts to obtain work. The continued drug use suggests that he would not be able to continue to take advantage of a suspended sentence even with conditions.

11 I turn to the grounds of appeal in relation to whether the sentence was manifestly excessive. In all the circumstances, despite the error of approach and the error about his appearances at court, a term of imprisonment to be served immediately was well open and appropriate. However, the length of that sentence is another matter. There is always an issue as to the length of sentences and the court will be slow to intervene. Ms Pederson correctly points to the authorities on the exercise of a discretion by an appellate court in interfering with a sentence of imprisonment or its length. However, having regard to the facts of this case, the offending, and the range of sentences usually imposed for offences of this nature, the magistrate erred in accumulating all of the sentences.

12 Had this matter been proceeding today, with no other background, I consider that a sentence of 9 months' imprisonment (that is accumulating three, not five of the sentences) would have met all of the aims and purposes of sentencing. A sentence which exceeded 9 months by a further 6 months is manifestly excessive. In normal circumstances, I would then allow the appeal by varying it to impose a total sentence of 9 months' imprisonment.

13 However, things are complicated because the appellant had served 131 days before being released to bail. This is approximately half the 9 months' sentence. There is little utility in sending him back to prison for what may be a short term. I have re-read the oral pre-sentence report. I have taken note of all of the factors and the history, including the history of the Drug Court. The appropriate thing to do is this: the concurrent terms of imprisonment have been served and are fully discharged. In relation to the driving while under suspension, in the unusual circumstances, I set aside the terms of imprisonment and impose an intensive supervision order in each case for a period of 9 months, with a program requirement.