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[2000] WASCA 171
Court of Appeal (WA)
2000-06-23
Hasluck J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : NEBRO -v- DUXBURY & ANOR [2000] WASCA 171
Sentencing Act - Road Traffic Act - Driving under influence - Driving without licence - Imprisonment without parole eligibility - Whether eligibility should be granted - Lack of matters pointing positively to appropriateness of parole - Many prior convictions
Justices Act 1902,, s 186
Appeal under Justices Act dismissed
Archibald v The Queen (1989) 40 A Crim R 228
Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
House v R [1936] HCA 40; (1936) 55 CLR 499
R v Tait (1979) 46 FLR 386
1 HASLUCK J: The appellant obtained leave to appeal the sentencing decisions given at the Court of Petty Sessions in Perth on 29 December 1999 by Mr Lawrence SM in respect of charges arising under the Road Traffic Act 1974 and the Bail Act 1982. The appeal is brought pursuant to provisions of the Justices Act 1902 which allow to a Judge of the Supreme Court powers to dismiss the appeal, or set aside, quash or vary the decision of the Magistrate and to substitute a decision that ought to have been made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him. It was apparent from the grounds of appeal and from the way in which the matter was argued before me that the question to be resolved on appeal was whether the learned Magistrate erred by not ordering that the appellant be eligible for parole.
2 When the matter came before the learned Magistrate, the appellant was represented by Ms Martill who indicated that the appellant would be pleading guilty to all charges. The charges were as follows:
1. That on 27 November 1999 at Perth he drove a motor vehicle registered number 9KC 429 on a road, namely, Wellington Street whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle contrary to s 63(1) of the Road Traffic Act.
2. That on 27 November 1999 at Perth he drove a motor vehicle registered 9KC 429 on a road, namely, Wellington Street without being the holder of the appropriate valid driver's licence for that class of vehicle whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act.
3. That on 1 December 1999 at Busselton he drove a motor vehicle registered number 6YZ 223 on a road, namely, Bussell Highway without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act.
3 Counsel for the appellant admitted the facts submitted to the court by the prosecutor, that is to say, that the reading for the driving under the influence offence was .213 and that this would be an eighth conviction for an offence of that kind and a sixth conviction for driving without a licence. No objection was taken when the prosecutor tendered the appellant's record. It is not entirely clear from the materials brought before me on the appeal what exactly was submitted to the learned Magistrate as "the record", but no objection was taken when the Magistrate summarised the details before him to this effect: that the appellant had been convicted on three occasions on 29 January 1999 for driving under the influence and for driving under suspension and that he had two previous convictions for driving under suspension and four previous convictions for driving under the influence. The learned Magistrate said that on his calculation this meant that the charge presently before him of driving under the influence would be the appellant's eighth conviction of such a charge since 1994.
4 I digress briefly to note that the materials brought before me on the appeal included a certified copy of court outcomes dated 28 February 2000 obtained from the Offender Information Bureau. This revealed that the appellant was born on 22 February 1972 and had a lengthy record of convictions unrelated to the use of motor vehicles commencing on 21 June 1984 and including such matters as breaking and entering, stealing, assault occasioning bodily harm, disorderly conduct, hindering the police, loitering, burglary, breach of bail, escaping legal custody and breach of suspended sentence. A certified copy of his traffic convictions revealed that in addition to the charges of driving under the influence and driving without holding a motor driver's licence mentioned earlier, he had also been convicted of various other offences associated with the use of motor vehicles, including stealing a motor vehicle on three occasions, wilfully misleading a police officer, failing to stop when called upon and providing a false name and address.
5 At the hearing before the learned Magistrate counsel for the appellant stated that he was 27 years of age, had a de facto wife and a baby daughter aged three years. Counsel went on to say that as to the charges arising out of events in Perth, the appellant was on his way to visit his mother who was receiving treatment for cancer in Royal Perth Hospital. He was upset because he did not think his mother would pull through the operation. He had been drinking earlier in the day, but, having had a sleep, he woke up believing he was sober enough to drive. After the incident near Royal Perth Hospital, he travelled down to Busselton for his cousin's funeral. The events in Busselton arose while he was travelling back to Perth for the court appearance which was listed on 2 December 1999. Counsel added:
"Mr Nebro has instructed me that his grandfather who is a Justice of the Peace has obtained a job for him working on a mine in Laverton. That would start early this year. He is from Kalgoorlie but he has been in Perth for about four or five months now. He has instructed me that he will be out bush working on the mine away from any trouble. He has asked me to ask your Worship to impose a suspended term of imprisonment."
6 The appellant then addressed the learned Magistrate in person. In the course of his address he said that "when my grandfather gets me work in Murrin Murrin nickel mine in Laverton I'll be .. I'll have a job and I'll be a supporting parent, you know, for my missus and my child."
7 It was against this background that the learned Magistrate proceeded to sentence the appellant. He observed that the appellant had endangered the safety of other road users on numerous occasions since 1994, with the result that he was "certainly jeopardising the safety of other people on the road." He then said this:
"There is only 1 [sic one] appropriate disposition and that is to impose a term of imprisonment upon you, not only to deter you but also to deter other people from driving not only under suspension but driving under the influence of alcohol. You shall be sentenced to 12 months imprisonment in relation to the driving under the influence of alcohol, Mr Nebro, and you will also be sentenced to a period of 6 months imprisonment for driving under suspension on the 1st of December which shall be accumulative upon the sentence of 12 months. You'll be sentenced to 6 months imprisonment concurrent in relation to the driving under suspension on the 27th of November.
In other words your sentence is 18 months imprisonment, Mr Nebro, because of your antecedents. The circumstances of these offences and the overall circumstances concerning you not only personally but in relation to the commission of these offences, you shall not be eligible for parole. You'll be disqualified for life again for driving under the influence. Twelve months accumulative on each of the driving under suspensions. On the other 2 matters you'll be fined $400 and costs of $38."
8 It follows from these remarks that the Magistrate, in summary, sentenced the appellant to 18 months' imprisonment without allowing any eligibility for parole. The appellant submits on appeal that the learned Magistrate erred by not ordering that the appellant be eligible for parole, taking into account the seriousness and nature of the offences, the circumstances of the commission of the offences, the personal circumstances and antecedents of the appellant and, in particular, the appellant's alcohol use and prospects of future employment. The grounds of appeal also suggest that the learned Magistrate erred in failing to take account of the circumstances which might affect the appellant at the time he would be eligible for release on parole, including the interests of the community in the rehabilitation of the appellant under supervision.
9 In order to complete the narrative, I am obliged to say that subsequent to the handing-down of the learned Magistrate's decision a pre-sentence report was prepared by Mr L Ross Webber, a Community Corrections Officer, this report being dated 18 April 2000. At the hearing before me both counsel were agreeable to this pre-sentence report being received as part of the materials on appeal. The pre-sentence report summarised the appellant's previous court history, referring to the fact that he made his first court appearance at the age of 12 years. The author of the report observes that the offender's first offences involving motor vehicles were committed when he was 13 and he has continued to offend on a regular basis into his late twenties. He was said to have repeatedly offended in a manner similar to the offences for which he is now serving sentence as a consequence of the learned Magistrate's ruling on 29 December 1999. The record of past court appearances indicates that the appellant's offending continues unabated, regardless of the penalties imposed. It is apparent from the report that the appellant has had some previous experience of parole and of community service orders. The author of the report observed that he has had "several opportunities to indicate his suitability for supervision in the community, but to date has not successfully completed an order."
10 The author of the report noted that the appellant has been a regular user of alcohol. He has completed several substance abuse courses whilst in prison over recent years, but is prone to relapse upon return to the community. He has a history of relatively minimal employment. It is significant that the author of the report was apparently not provided with any information by the appellant suggesting that work might be available to him at Laverton of the kind foreshadowed at the hearing before the learned Magistrate.
11 The pre-sentence report prepared by Mr Webber concludes with a summary in these terms:
"Mr Nebro is a twenty eight-year-old single man with an entrenched problem relating to his use of alcohol, and to a lesser extent cannabis. He has a record of convictions dating from his early teenage years and he continues to reoffend in a repeating pattern. He shows little change in his behaviour and the major reason for the apparent slowing down in his rate of offending, is that he is now spending longer terms in custody for his continued unlawful use of motor vehicles.
Raised in a family where excessive consumption of alcohol was the norm, Mr Nebro became entrenched in a pattern of negative behaviour before he was able to identify the risks and consequences of the lifestyle. He is now able to identify the negative features of drinking to excess but is unable to make the lifestyle changes required to break the cycle of drinking and offending.
Mr Nebro has had the opportunity of supervision in the community on several occasions but has yet to successfully complete an order. His response has generally been to fail to comply with reporting and treatment conditions, and eventually reoffend. His repeated offending is a consequence of his continued drinking and his prospects of making the required lifestyle changes in the foreseeable future are minimal."
12 It is against this background that I turn to the relevant provisions of the Road Traffic Act, the Bail Act and the Sentencing Act 1995. These provisions are well-known and it will be sufficient for present purposes to refer to them in summary form, omitting the inessential parts.
13 Section 5(1)(1a) of the Road Traffic Act allows for abbreviations to be used in describing penalties for offences. In that regard "PU" stands for penalty units and a reference to a number of PU is a reference to an amount in dollars, that is, that number multiplied by 50. Section 49 defines offences of driving a motor vehicle without a driver's licence, including reference to driving while disqualified from holding or obtaining a driver's licence or while a licence is cancelled or suspended. The penalty in the latter case for subsequent offences is a fine of not less than 20 PU or more than $2,000, or imprisonment for a term not exceeding 18 months, or both the fine and the imprisonment. Section 63(1) provides that a person who drives while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle commits an offence. The penalty for a third or subsequent offence is a fine of not less than 40 PU or more than 100 PU or imprisonment for 18 months and, in any event, the court convicting that person shall order that he be permanently disqualified from holding or obtaining a driver's licence.
14 Section 51(1) of the Bail Act provides that a defendant who, without reasonable cause, fails to comply with the requirement of his bail undertaking commits an offence. A person convicted of an offence is liable to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.
15 Division 1 of the Sentencing Act sets out various principles of sentencing. By s 6, a sentence imposed on an offender must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. By s 9(3), if the statutory penalty for an offence specifies a minimum and a maximum penalty, the penalty to be imposed for the offence must be at least that minimum and not more than that maximum.
16 Section 39 of the Act sets out the sentencing options for a natural person and requires that a court must not use a prescribed sentencing option unless satisfied, having regard to the sentencing principles, that it is not appropriate to use any of the options listed before that option. In the context of the present case, this provides, in ascending order, that a court may impose a fine and order the release of the offender, impose a community-based order and order the release of the offender, impose an intensive supervision order and order the release of the offender, impose a suspended imprisonment and order the release of the offender or impose a term of imprisonment. By s 42, if the statutory penalty is imprisonment and fine, the court may use any one of the sentencing options in s 39(2) and in addition fine the offender. By s 43, if the statutory penalty is imprisonment or fine, the court may use any one of the sentencing options in s 39(2).
17 By s 53, if a court decides to fine an offender, then it must, as far as is practicable, take into account the means of the offender and the extent to which payment of the fine will burden the offender. The court is at liberty to fine even though it has been unable to find out about such matters. By s 54, a court sentencing an offender for two or more offences comprising a series of offences of the same or a similar kind may impose a single fine for all of the offences. By s 76, a court that sentences an offender to a term of imprisonment may order that the term be suspended for a period set by the court upon the basis that if an offence is committed during the suspended period, the offender can be required to serve the term that was suspended.
18 Before turning to the provisions concerning imprisonment, I pause to note that Part 3 of the Act deals with preliminaries to sentencing. Section 20 provides that if a court considers it would be assisted in sentencing an offender by a pre-sentence report, it may order such a report. Related provisions establish that pre-sentence reports are to be made as soon as practicable and, in any event, within 21 days after being ordered. They are to set out matters about the offender that are, by reason of the Sentencing Act or sentencing practice, relevant to sentencing the offender. Section 34 requires a court to explain the effect of the sentence and any order in addition to the sentence. Section 35 provides that a court sentencing an offender to a term of imprisonment, or an aggregate of terms of imprisonment, of 12 months or less must give written reasons why no other available sentencing option was appropriate. Written reasons includes reasons given orally and subsequently transcribed.
19 When one turns to the provisions concerning imprisonment, it is apparent in the circumstances of the present case that s 89 concerning eligibility for parole is the crucial point of reference. That section provides:
"(1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2) In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(b) the circumstances of the commission of the offence;
(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e) any other reason the court decides is relevant.
(3) A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously.
(4) A parole eligibility order must not be made in respect of a prescribed term.
(5) If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms."
20 Release from imprisonment, including release on parole, is dealt with in later provisions. By s 93, a prisoner serving a parole term is eligible to be released on parole when he or she has served one-third of the term if the term is 6 years or less, or when he or she has served 2 years less than two-thirds of the term if the term is more than 6 years. By s 95, a prisoner serving a fixed term that is not a parole term is discharged from that sentence when he or she has served two-thirds of the term.
21 I note in passing that various provisions of the Sentence Administration Act 1995 will have an effect upon the manner in which a parole term is served. For example, in s 18, in deciding whether or not to release a person eligible for parole, on parole, the person exercising the power shall give paramount consideration to the protection and interest of the community. It follows from later discussion, however, that in determining what sentence should be imposed the court should not take account of or be influenced by the effect of these provisions.
22 The nature and purpose of parole and the way in which a court should enter upon a determination of whether to make an order for eligibility for parole has been the subject of comment in numerous decisions. In Wongawol v R, unreported; CCA SCt of WA; Library No 980233; 4 May 1998, the Court of Criminal Appeal held that the same principles apply under Part 13 of the Sentencing Act and Part 3 of the Sentence Administration Act as previously applied under s 37A of the Offenders Community Correction Act 1963. The principles in question, enunciated originally in Thompson v R [1992] 8 WAR 387, and reiterated in Wongawol, are well-known and I will not refer to them in their entirety. In summary, and with an emphasis upon those principles relevant to the circumstances of the present case, it is apparent that once a court sentences a person to a term of imprisonment, the question of eligibility for parole must be considered. This calls for the exercise of judicial discretion which cannot be triggered unless there is something in the materials before the sentencing court which points positively towards the appropriateness of parole. Nonetheless, the philosophy of the Act suggests a bias towards eligibility. Parole serves to mitigate punishment as well as provide an opportunity for rehabilitation. In determining whether an order for eligibility for parole should be made, the sentencing court may have regard to all or any of the following factors, that is to say, the nature of the offence, the circumstances of the commission of the offence, the antecedents of the offender and circumstances which are relevant to the offender or which might, in the opinion of the court, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made and any other matter that the Judge thinks relevant.
23 A consideration of circumstances which are relevant to the offender requires the sentencing court to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other. This is to enable some preliminary consideration of the question, whether in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community. The severity of the sentence is relevant to the question of eligibility for parole, but even where the sentence is lenient, it is necessary to consider the question.
24 The Court of Criminal Appeal in Wongawol (supra), in the course of reiterating these principles, cited with approval various passages from Swain v R (1989) 41 A Crim R 214. I note in passing that in Swain Malcolm CJ said at 218 that if the antecedents of the offender show a series of prior convictions for similar offences, it has been accepted that this would tend to show that the offender was a poor parole risk and suggest that an eligibility order would not be appropriate. On the other hand, in the context of antecedents, one of the strongest positive pointers to eligibility would be that the applicant was a first-offender. Malcolm CJ observed in the context of that case, which concerned charges brought against a company director who had no prior criminal convictions and was thought to be basically a law-abiding citizen, that those factors, together with the unlikelihood of the offender reoffending if released on parole, pointed positively towards the appropriateness of parole in the circumstances of that case.
25 In Howell & Utting v The Queen [1989] 2 WAR 60 at 68 Seaman J noted that as parole was to be viewed as a mitigation of punishment in favour of a prisoner's rehabilitation through conditional freedom, the prospect of rehabilitation would be an important consideration in the case of a youthful offender subject to a severe sentence who was to be held in custody for a long period of time.
26 The decided cases also indicate that an appeal court will only interfere with a sentence that is manifestly inadequate or excessive, where, for instance, the trial Judge has acted on a wrong principle or overlooked or undervalued or overestimated or misunderstood some salient feature of the material before him: Wongawol (supra) at 357. Also see Weng Keong Chan (1989) 38 A Crim R 337 at 342. This approach seems to be consistent with s 186 of the Justices Act which requires that leave to appeal can only be obtained upon specified grounds, the nature of which suggest that the appellant is required to identify an error by the court below. I note, however, that O 65A of the Supreme Court Rules provides that appeals under the Justices Act will be by way of rehearing. This indicates that the power to review the decision should be construed broadly, bearing in mind especially that, under O 65A r 3, there is power to admit further evidence. It was pursuant to that power that the pre-sentence report prepared by Mr Webber was admitted in the circumstances of the present case.
27 When one seeks to apply these principles and the relevant statutory provisions to the circumstances of the present case, I am obliged to reiterate that the only issue raised on the appeal was the question of eligibility for parole. The appellant did not seek to contest the validity or length of the term of imprisonment, that is to say, the term of 12 months' imprisonment in relation to driving under the influence of alcohol, 6 months' imprisonment for driving under suspension on 1 December 1999, 6 months' imprisonment concurrent in relation to driving under suspension on 27 November 1999, making 18 months' imprisonment in total.
28 I note that in imposing a fixed term of imprisonment without eligibility for parole, the comments made by the learned Magistrate were short and peremptory. The reasoning of the Magistrate, as reflected in the transcript, does not suggest, at a first glance, that the learned Magistrate, step by step, applied the sentencing principles and sentencing options set out in the Sentencing Act in the manner envisaged by that Act, or articulated principles of the kind previously mentioned when he turned his attention to the question of parole. Nonetheless, an appeal court has to be conscious of the underlying reality that the day-to-day business of a Magistrate's Court requires that matters be dealt with expeditiously and in a straightforward way that can be easily comprehended by the parties before the court. It is apparent from the transcript that the learned Magistrate turned his mind to eligibility for parole. The question is whether, albeit in a summary form, there is sufficient evidence in the record of what occurred to suggest that in essence he gave consideration to the requirements of the Sentencing Act and the principles relevant to eligibility for parole in making his orders.
29 The offender was young but had a long list of prior convictions for similar offences. The transcript shows that the learned Magistrate clearly contemplated that the sentences should reflect elements of general and personal deterrence. There was very little in the materials before him pointing positively towards the appropriateness of parole, notwithstanding that parole should be viewed as a process serving to mitigate punishment as well as provide an opportunity for rehabilitation. Mr Webber's pre-sentence report was not before the learned Magistrate, but that report contains very little that might have altered the Magistrate's perception of the offender's antecedents. The report confirms the Magistrate's view that the offender's record evidenced a blatent disregard of the law on previous occasions and there was a strong risk he would reoffend. This is implicit in the Magistrate's comment that the offender was "jeopardising the safety of other people on the road." I also note that the term of imprisonment was not for a lengthy period, or especially severe having regard to the circumstances of the case and the offender's prior convictions. The decided cases suggest that a court is entitled to take account of this factor in looking at the prospects of rehabilitation.
30 One factor in the materials before the learned Magistrate which might arguably be said to point positively towards the appropriateness of parole was the possibility touched upon by counsel for the offender, and by the offender himself, that, with the assistance of his grandfather, he might be able to obtain employment at Laverton and thus, in that remote situation, not jeopardise other road users and regain his equilibrium. The evidence concerning this aspect of the matter was scant and it is significant that no mention was made of this prospect of employment in the pre-sentence report, although, as I have noticed in passing, the relevant provisions require that such a report include reference to matters having a bearing upon the sentence to be imposed.
31 Counsel for the appellant placed considerable emphasis upon this aspect of the matter - the supposed prospect of employment - at the hearing before me. He went on to suggest that the transcript of the hearing revealed various matters which pointed positively towards parole. The appellant had pleaded guilty and demonstrated remorse. The offences committed by the appellant occurred in circumstances where he was attempting to visit his mother who was in hospital following treatment for cancer, and in the context of having to attend the funeral of a close relative. The appellant had what counsel called "genuine prospects of employment". Counsel also referred to the fact that the appellant had a long-standing problem with alcohol abuse, as demonstrated by the contents of the pre-sentence report, and suggested that this, too, was evident from materials before the learned Magistrate at the hearing.
32 Counsel for the respondent answered these submissions by pointing out that the driving under the influence offence committed by the appellant on 27 November 1999 was serious in nature in that the driver had a blood alcohol level of 0.213. He had been imprisoned for the same offence on prior occasions and was under a life disqualification. A further conviction would be his eighth conviction and this clearly indicated that the appellant was a poor parole risk, with the result that an eligibility order for a period of supervision in the community was inappropriate. Counsel submitted that there was clearly no utility in a period of supervision in the community, given the appellant's propensity to drink and drive and to do so in defiance of court orders, and these considerations were inherent in the learned Magistrate's decision.
33 It is true that the learned Magistrate did not purport to review the materials before him and principles applicable to the same in detail before imposing an 18-month term of imprisonment without eligibility for parole. However, the case before him was of an extreme nature and the prior record of the offender revealed a continuing propensity to disregard the law. The factors relied on by counsel for the appellant as pointing positively to the appropriateness of eligibility for parole were not demonstrated clearly by the evidence and it is clear that the learned Magistrate did not see them as being sufficient to outweigh the seriousness of the offences. I am not satisfied that he was in error in that regard and in the absence of an identifiable error in the exercise of his discretion, I am not prepared to hold that the appeal should be allowed. If I be wrong in that conclusion, I am nonetheless of the view that the materials before me, including the pre-sentence report, are not sufficient to justify the making of an order of the kind contended for by the appellant. Accordingly, the appeal will be dismissed.
# Nebro
Duxbury & Anor \[2000\] WASCA 171
(1953) 94 CLR 621
(1936) 55 CLR 499
(1979) 46 FLR 386