O'REILLY -v- HARRIS [2016] WASC 328 (12 October 2016)

2 All of those sentences were made concurrent. There were also motor driver's licence disqualifications that were imposed, which are presently of no consequence. The total effective sentence was, therefore, as I have mentioned, one of 12 months imprisonment. By an appeal notice filed on 20 September 2016, the appellant seeks leave to appeal against the sentences imposed.

3 The appeal was filed out of time and an extension is required. An affidavit sworn by the appellant's solicitor explains some, but not all, of the delay. In these circumstances, whether an extension should be granted critically depends on whether to deny one would allow a miscarriage of justice to stand uncorrected. Accordingly, it is necessary to consider the merits of the appeal.

(1) The learned sentencing magistrate erred by reducing the discount given under s 9AA of the Sentencing Act due to a delay arising from successful negotiations with the prosecution.

(2) The learned sentencing magistrate erred by treating the dangerous driving offence as a second offence 'because of the nature of the driving' and in circumstances where s 61(3)(a) of the Road Traffic Act 1974 (WA) did not apply.

(3) The sentence of imprisonment was manifestly excessive in all of the circumstances. Particulars:

(a) taking into account the personal rehabilitation of the appellant between the time of offending and sentencing, and

(b) by failing to suspend the term of imprisonment imposed.

5 As to ground 1, the appellant was charged with the first five offences, (plus another, driving an unlicensed vehicle, which attracted a fine and is not the subject of this appeal) on 15 January 2015. He was released on bail and required to appear in the Rockingham Magistrates Court on 6 February that year. It should be noted that the appellant was initially charged with aggravated reckless driving, a more serious offence than aggravated dangerous driving.

6 The appellant appeared in court on 6 February, 27 February and 27 March 2015. He then failed to appear as required on 8 May 2015 and an arrest warrant was issued. He was subsequently charged with an offence of breaching bail for this failure.

7 On 28 July 2015, the appellant was arrested by police at the scene of the execution of a search warrant. It was determined that he had an unexecuted bench warrant for his arrest at that time. He appeared in court on 29 July 2015 and was, again, granted bail. There were then appearances on 2 September, 7 October, 18 November and 21 December 2015 and also a mention on 30 November for which the attendance of the appellant was excused.

8 The prosecution notice has a notation that negotiations between the parties were occurring as from 7 October 2015. On 21 December there is a notation that the prosecution will amend the reckless driving to a lesser charge and that there will then be pleas of guilty and that this has been confirmed by a letter from the appellant's then solicitor which was dated that day, that is 21 December 2015.

9 On 1 February 2016, the anticipated amendment was made and the appellant entered pleas of guilty to all charges. The matter was then adjourned to obtain a presentence report. There were several further mentions before the appellant appeared for sentencing on 28 June 2016.

10 In the sentencing submissions on 28 June 2016, defence counsel, who is not the counsel who now appears for the appellant on this appeal, submitted that there had been an early plea of guilty and noted that pleas had been entered following successful negotiations.

11 In her sentencing remarks, the magistrate said that the pleas had not been entered early in the proceedings but that it was clear that the appellant's then lawyer had entered into 'protracted negotiations' that resulted in an amendment to the most serious charge. Her Honour said that, against that background, she gave the appellant a 15% discount.

12 The appellant submits that to give a blanket 15% discount fails to take into account that the plea to the dangerous driving offence could not have been entered earlier than 1 February 2016 as it was on that day that the charge was amended. This plea, it was submitted, was entered at the first reasonable opportunity and deserved a larger discount.

13 There was a suggestion that the magistrate reduced the discount due to the protracted nature of the negotiations. The magistrate's description of the negotiations as protracted was factually accurate. The records indicate that those negotiations continued for at least the period covered by the mentions on 7 October, 18 November and 30 November. However, I do not infer from her Honour's remarks that she was ascribing any blame for that to the appellant. Rather, in my view her Honour was saying that there had been a long delay but that some of it could be explained and discounted because of the negotiations.

14 The real issue is whether the pleas were entered at the first reasonable opportunity. No such argument could be raised in respect of any of the other charges. Only the reckless driving charge was amended. All the others remained unchanged and had been pending for over a year, or in the case of the bail offence over six months, before pleas of guilty were entered. If anything, a 15% discount in respect of those offences was generous.

15 The argument in respect of the dangerous driving charge assumes that the appellant could not have entered a plea to that charge any earlier than 1 February 2016. Whilst at a purely technical level he could not have entered a plea before that date, any proper assessment needs to take into account the context.

16 What clearly occurred here was that the appellant offered to plead guilty to all charges if the reckless driving was reduced to a dangerous driving. There was no change to the facts alleged. The statement of material facts that related to the reckless driving corresponds to the facts as read to the court in respect of the dangerous driving. The appellant was, understandably, trying to obtain an outcome that was favourable to him in the negotiations. The exact content of the negotiations is not known and no further information in this regard has been supplied on this appeal. However, it is reasonable to infer from the prosecution notice that an offer to plead to the lesser offence of aggravated dangerous driving was not made until on or about 7 October 2015 (or at least between the previous mention and that date). That was approximately eight to nine months after the appellant had been charged. Even assuming, favourably to the appellant, that he is not responsible for any of the delay that occurred thereafter, it is not possible to conclude that his plea of guilty to the dangerous driving charge was entered at the first reasonable opportunity. I refer in this regard to the relevance of the course of the negotiations and what was said in Marshall v The State of Western Australia [2015] WASCA 156. See also Petrelis v The State of Western Australia [2012] WASCA 235 and The State of Western Australia v Auckram [2013] WASCA 256.

17 There is another factor that is relevant and that is the strength of the prosecution case. Prior to calculating the discount for pleading guilty, the magistrate noted that the appellant had been pursued by police and that he was 'caught in the car'. Her Honour noted that, 'How can he not accept responsibility for what he has done?' The discount afforded for a plea of guilty under s 9AA can be reduced when taking into account the strength of the prosecution case: Beins v The State of Western Australia [No 2] [2014] WASCA 54 and Abraham v The State of Western Australia [2014] WASCA 151.

18 In all of the circumstances, I am unable to accept that the discount of 15% for the dangerous driving offence was in error. There was material before the magistrate that supported that assessment. In my view, ground 1 is not made out.

Ground 2 - did the magistrate mischaracterise the dangerous driving charge?

19 As to ground 2, the dangerous driving offence was an aggravated offence in that the appellant drove dangerously in order to escape pursuit by a police officer. As such, the maximum penalty was a fine of 720 penalty units or imprisonment for up to three years: s 61(3)(b) Road Traffic Act.

20 Section 61 of the Road Traffic Act provides as follows:

(1) Every person who drives a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.

(2) A person charged with an offence against this section may, instead of being convicted of that offence, be convicted of an offence against section 62 or 62A.

(3) A person convicted of an offence against this section is liable -

(i) for a first offence - to a fine of 60 PU;

(ii) for a subsequent offence - to a fine of 120 PU or to imprisonment for 9 months; and, in any event, the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months;

(b) if the offence is committed in the circumstance of aggravation referred to in section 49AB(1)(c) - to a fine of 720 PU or to imprisonment for 3 years; and, in any event, the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.

(4) For the purposes of subsection (3), where a person is convicted of an offence against this section any offence previously committed by him against section 59, 59A, or 60 shall be taken into account and be deemed to have been an offence against this section (but not to the exclusion of any other previous offence against this section) in determining whether that first mentioned offence is a first or subsequent offence.

21 The circumstance of aggravation referred to in s 61(3)(b) exists where the person is driving the vehicle concerned to escape pursuit by a police officer: s 49AB(1)(c). This provision, together with the amendments to create aggravated forms of reckless and dangerous driving, was introduced in 2012: Road Traffic (Miscellaneous Amendments) Act 2012 (WA).

22 The penalties for nonaggravated dangerous driving vary depending on whether the offence is a first or subsequent offence: s 61(3)(a). For the purposes of determining whether an offence is a subsequent one, prior offences of reckless driving as well as priors of dangerous driving are taken into account: s 61(4). The appellant had a prior for reckless driving but this did not affect the maximum penalty in this case because he was charged with the aggravated form of the offence, which attracts a much higher maximum penalty in any event: s 61(3)(b).

23 In her sentencing remarks, the magistrate noted that the appellant had a prior offence of reckless driving and that the present offence would be regarded as a second offence because of 'the nature of the driving'. In my view, this was simply a statement of fact. Even though s 61(3)(a) did not apply here, it remained relevant that the appellant had committed an offence of a similar nature before. There is nothing to suggest the magistrate was confused as to the relevant maximum penalty. In any event, any such error would have been unduly favourable to the appellant.

24 At the hearing of the appeal, counsel clarified that ground 2 was intended to assert that the magistrate had incorrectly treated the appellant as if he had committed an offence of aggravated reckless driving. This was said to be due to the following factors: first, the magistrate's reference to the prior offence and the 'nature of the driving'; second, an exchange between the prosecutor and the magistrate regarding why the charge had been downgraded; and third, a reference to the appellant's driving 'without regard to the safety or wellbeing of others'. It was submitted that, taken together, these factors supported an inference that the magistrate imposed a punishment on the basis that the appellant was convicted of the more serious offence of reckless driving. This appears, on the face of it, to be a slightly different point to that raised by the ground. But, nonetheless, it has been dealt with at the hearing of this appeal and met by the respondent.

25 The relevant distinction between reckless driving and dangerous driving is the element of wilfulness. In this sense, the heading of s 60 is apt to mislead. Although that offence is referred to as reckless driving, there is an element of wilfulness that must be established in respect of that offence. The word 'wilfully' in this context means 'deliberately' - even if the deliberation is only momentary: Edmond v Taylor (1998) 29 MVR 187. In contrast, dangerous driving under s 61 only requires an objective assessment of the manner of driving.

26 In my view, nothing said by the magistrate wrongly ascribed to the appellant wilfulness in the manner of his driving. That is, wilfulness in the sense that being conscious or aware of the possible consequences of his driving, he engaged in it in any event. The magistrate found that the appellant drove in an objectively dangerous way without regard for others. That is, that his actions were thoughtless. I accept what is said on behalf of the appellant, that it was not necessary to make any findings in respect of the state of mind of the appellant at all, that not being an element of the offence. But I do not accept that the finding made by her Honour was inconsistent with the offence with which the appellant was convicted. That finding was, in my view, consistent with the offence charged and with the alleged facts. In those circumstances, ground 2 fails.

Ground 3 - was the sentence manifestly excessive?

27 As to ground 3, that ground alleges that the total effective sentence was manifestly excessive. Manifest excess is the term usually used in respect of a single offence. Totality is normally used where the complaint relates to multiple offences. But it is of little consequence here. The import of the ground is that the sentence of 12 months was excessive in the circumstances.

28 A ground that alleges manifest excess asserts implied error. That is, in all of the circumstances, including those personal to the appellant, the sentence imposed was not one that was open in the exercise of sound sentencing discretion. It is always important to bear in mind that the question on appeal against sentence where such a ground is asserted is not what the appellate court would do if it were the sentencer, but whether the sentence imposed in the court below was open to that court in the exercise of its discretion. Deference should always be accorded to the fact that the sentencing court possesses discretion in respect of the imposition of a sentence.

29 The maximum penalty for aggravated dangerous driving is 3 years' imprisonment. That maximum is significantly higher than for offences of dangerous driving that do not occur in circumstances of aggravation. This reflects the seriousness of this particular form of the offence. It also means that comparison with sentences imposed for nonaggravated dangerous driving offences are inappropriate. There is no established range of sentences for aggravated offences of this nature so it is not possible to say that the sentence imposed here fell outside any such range. Nor was I referred to any cases that were said to be comparable.

30 I have been provided today with the second reading speech of the amending Act that introduced the aggravated form of the offence. It must be borne in mind that the amending Act made amendments to s 60 as well as s 61. However, the speech does reveal the rationale for the amendments. The Minister for Police commenced her speech by saying:

The government is concerned about the behaviour of people seeking to evade pursuit by police on our roads. Since 2009, the number of recorded incidents of people evading police pursuit has more than doubled. In 20112012 there were 327 such pursuits. There are a range of reasons why people fail to stop when called upon to do so by a police officer. They may be concerned they will be apprehended for some other serious criminal activity; they may be in possession of a stolen vehicle or simply engaged in thrillseeking behaviour. Whatever the reason when a person decides to evade a police officer in a motor vehicle it is an extremely dangerous course of action that poses a significant risk to police officers and to all other road users and bystanders who unwittingly find themselves in the path of the pursuit, as well as to the individuals evading police themselves. In 201112, there were six incidents of death or serious injury arising out of police pursuits (Hansard, Legislative Assembly, 24 October 2012, p 7543d 7545a).

31 After referring to provisions intended to provide immunity to pursuing police, the Minister referred to amendment to the penalties for driving offences committed by offenders during a police chase:

The second thing the bill seeks to do is ensure the law appropriately recognises the gravity of offending behaviour on our roads, and the risks to other road users that result when people seek to evade a police pursuit. It reflects the government's position that failing to stop when called upon to do so by a police officer is always a very serious matter, and that people who drive recklessly to evade police should be jailed, both in recognition of the wrongfulness of their actions and to ensure they cannot continue to put other road users at risk.

The bill inserts a new provision into the Road Traffic Act 1974 to create a circumstance of aggravation for the offences of reckless and dangerous driving and failing to stop, committed when a person is attempting to evade pursuit by police. Currently, a person who seeks to evade police pursuit but is not driving a stolen vehicle or does not cause death or injury can only be charged with the standard offences such as failing to stop or dangerous driving or reckless driving. These standard offences carry penalties that are not commensurate with the risk that the offender's actions have posed to the community (Hansard, Legislative Assembly, 24 October 2012, p 7543d 7545a).

32 The alleged facts here were referred to by the prosecutor in the proceedings before the magistrate. I will refer to them briefly. They were that the appellant was driving his vehicle at 10.35 pm at night on Gilmore Avenue in Leda. The police pulled up behind him in a fully marked police vehicle. His car was stationery at the time. He was told that he needed to be spoken to in relation to another matter and to turn his vehicle off. At this point he drove away. Police then followed, activating emergency lights and sirens, indicating that he was to stop.

33 The appellant drove off at speed through numerous streets in Kwinana and Rockingham. This was through builtup residential areas as well as industrial areas. Numerous police vehicles became involved whilst the pursuit was occurring. The appellant drove in excess of 60 kmph on the incorrect side of the road on Gilmore Avenue, collided with a number of traffic cones that were on that road due to ongoing road works and when there was at that time a 40 kmph speed limit (for road users travelling in the right direction).

34 The pursuit continued and the appellant then went through a red traffic control signal at the intersection of Gilmore Avenue and Mandurah Road and drove again on the incorrect side of Mandurah Road. He then drove into adjacent bushland. He was pursued through the bush and subsequently reentered onto Chesterfield Road. He again drove on the incorrect side of Mandurah Road and made a turn onto Patterson Road.

35 The appellant made a righthand turn onto Thomas Road, once again contravening a red traffic control signal. At the time, he was again on the incorrect side of the road. He drove for approximately 1 km on that side of the road, with other oncoming vehicles having to take emergency action to avoid the appellant's vehicle. He then drove onto a grassed residential area in Medina and then drove back onto Thomas Road.

36 The appellant subsequently drove parallel to Rockingham Road, made a lefthand turn into Alumina Road and then accelerated to speeds of 120 kmph whilst on Patterson Road in an area where the speed limit was between 80 and 90 kmph. His driving, at that stage, was described as erratic. The pursuit, in total, lasted for some 20 minutes and only ceased when the appellant's vehicle became bogged near Alumina Road. He was then surrounded by police vehicles and arrested.

37 After the appellant was stopped and searched a taser weapon was located in the front of the vehicle as well as a quantity of cannabis leaf material. There was some 131 g of cannabis, which he admitted to ownership of. The vehicle he was driving was not licensed and his driver's licence was suspended at the time.

38 In regard to the appellant's personal circumstances, he did have a criminal record. There was a reckless driving offence, although it occurred several years ago and had attracted a fine. It appeared not to by any means approach the seriousness of this offence.

39 Perhaps the most significant personal factor, other than his plea of guilty, was the appellant's efforts towards rehabilitation. He had good written references, both of a personal and work nature, and they indicated that he had made steps towards his rehabilitation including remaining abstinent from drugs. That was confirmed in the presentence report, in which there was reference to his willingness to engage in interventions and that he wished to remain abstinent. However, the report also stated that whilst the appellant claimed to have remained abstinent, his offending behaviours remained unaddressed suggesting his risk of reoffending remained high.

40 The magistrate concluded that the appellant had made significant steps towards his rehabilitation and she said (at page 20 of the transcript) that he had improved his position 'dramatically'. Nonetheless, she concluded that the seriousness of the offence was such that a sentence of immediate imprisonment was required.

41 There is no suggestion that her Honour failed to take into account the personal factors. Rather, it is suggested that her discretion miscarried and that it was not open to her to impose an immediate sentence. A suspended sentence was said to be the penalty that she should have imposed in the circumstances.

42 As I have said, the magistrate did not ignore rehabilitation. She specifically took it into account. In my view, it was open to the magistrate to conclude that, despite rehabilitation and the reduced need for specific deterrence, the seriousness of the offence and the need for general deterrence made a suspended sentence inappropriate. Whilst aggravated dangerous driving to avoid police pursuit does not attract a mandatory sentence of imprisonment (unlike aggravated reckless driving), there will be cases where the seriousness of the offence justifies such a penalty.

43 This was a very serious example of aggravated dangerous driving because:

(1) the driving continued for approximately 20 minutes;

(3) the driving was dangerous in several respects, including speed, driving on the wrong side of roads and driving contrary to traffic signals;

(4) the driving occurred in residential areas, for at least part of the time;

(5) members of the public had to take evasive action; and

(6) the offending conduct only ended when the appellant became bogged. He did not voluntarily desist.

44 Finally, it was suggested that a 12 month sentence could not be reconciled with a discount for the plea of guilty and any allowance made for other mitigating factors, including rehabilitation. The submission was that the starting point must have been too high and this was indicative of error. I do not accept this argument because it fails to take into account that the sentences for all the other offences were made concurrent. Whilst a number of the offences were encompassed in the dangerous driving, others were not and could properly have attracted cumulative sentences. It would be unrealistic to consider the dangerous driving sentence in isolation.

45 It was suggested that the bail offence was one that had occurred in mitigating circumstances because there was a particularly personal traumatic event which had caused the appellant to fail to appear. It related to a need for he and his partner to collect the ashes of their stillborn baby. I accept that that is so, and the magistrate appears to have accepted that too. However, that offence needs to be seen in the context where, notwithstanding the emotional events of that day (or the day before), the appellant then failed to appear for some further two and a half months. Clearly he could not have thought that the charges had gone away. He must have known that his failure to appear on that day had resulted in some action being taken. It is an aggravating factor in respect of that breach of bail that he remained at large until arrested on a warrant. So, notwithstanding what has been said on the appellant's behalf, I am not convinced that the bail offence would not have attracted a cumulative sentence were it not for the impact of the totality principle.

46 As said previously, it is artificial to consider the dangerous driving sentence in isolation. If there was any reduction in the sentence for the dangerous driving offence the impact on other sentences would have to be considered. In this case, that would likely result in making one or other of the other sentences cumulative, producing a total effective sentence of the same or similar length. In those circumstances, even if there was some error, of which I am not convinced in respect of the dangerous driving offence, there would not be a miscarriage of justice: s 14(2) Criminal Appeals Act 2004 (WA).

48 I have come to the conclusion that none of the grounds can succeed and accordingly an extension of time is refused and the appeal is dismissed.