File No : BS 854 of 2010, BS 855 of 2010, BS 856 of 2010, BS 857 of 2010

Criminal law - Appeal against sentence - Driving under the influence of alcohol - Driving while disentitled - Driving unlicensed vehicle - Driving vehicle with false number plates - Sentences of 12 and 6 months immediate imprisonment for DUI and driving while disentitled offences respectively - Whether error in fact or in law in approach to whether or not to suspend sentences of imprisonment - Whether immediate sentence of imprisonment of 12 months for DUI offence manifestly excessive - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14

Road Traffic Act 1974 (WA), s 15, s 49, s 63, s 97

Sentencing Act 1995 (WA), s 39, s 76, s 81, s 84A

Abdullah v Mills [2008] WASC 128

Anderson v Heath [2005] WASC 253

Anderson v Little [2009] WASC 143

Anderson v Stilwell [2006] WASC 257

Auburn v Sears (Unreported, WASC, Library No 970508, 2 October 1997)

Bell v Wesley [2007] WASC 264; (2007) 180 A Crim R 122

Chan v The Queen (1989) 38 A Crim R 337

Chinnery v Hansen [2001] WASCA 349; (2001) 125 A Crim R 426

Cross v Cook [2001] WASCA 242

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dragon v The State of Western Australia [2008] WASCA 252

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

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

Jennings v Carson (Unreported, WASC, Library No 980608, 21 October 1998)

Joyce v Gee [2010] WASC 76

Logan v Kuser [2008] WASC 65

Mason v Morrison [2004] WASCA 181

Matthews v Whalley [2010] WASCA 165

McDonald v White [2007] WASCA 213

Mieli v Beros [2006] WASC 294

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Nguyen v Espinoza [1999] WASCA 87

O'Brien v Ritchie (Unreported, WASC, Library No 990123, 17 March 1999)

R v Baldock [2010] WASCA 170

R v Tait (1979) 24 ALR 473

Reid v The State of Western Australia [2010] WASCA 70

Rossiter v Francisty [2005] WASC 270

Salkilld v The State of Western Australia [2010] WASCA 22

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sheiner v Roberts [2009] WASC 281

Stewart v Waghorn [1999] WASCA 150; (1999) 107 A Crim R 288

Sunfly v The State of Western Australia [2009] WASCA 22

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Wiltshire v Mafi [2010] WASCA 211

1 This is an application for leave to appeal and the appeal against sentences of immediate imprisonment imposed in the Magistrates Court following the appellant's pleas of guilty to charges of four traffic offences.

2 The charges were of driving under the influence of alcohol (the DUI offence); driving while no longer authorised to drive, the offender's licence having been cancelled (the driving while disentitled offence); as owner driving an unlicensed vehicle (the driving an unlicensed vehicle offence); and driving a vehicle with false number plates being ones not issued for that vehicle (the driving with false number plates offence). All four offences arose out of the one occasion of driving. The offender received terms of imprisonment to be immediately served for the first two offences, of 12 months and 6 months, respectively, to be served concurrently, while other orders were also made. He received non-custodial sentences for the other two offences.

3 The appeal concerns principally, but not only, the failure to suspend the terms of imprisonment the appellant received.

4 I first describe the circumstances of the offending and the proceedings in the Magistrates Court. I then outline the appeal proceedings in this court, before considering each of the two grounds of appeal. The final section is my conclusion.

The circumstances of the offending and the proceedings in the Magistrates Court

5 The prosecutor's statement of the facts of the offending made in the Magistrates Court was not contested before me. The quotations are from the transcript (20 July 2010, ts 3 - 4, 11 - 12).

6 On Saturday 15 May 2010 the offender was stopped while driving a Holden Rodeo utility on Quindalup Siding Road near Caves Road, Quindalup in the southwest of this State. The offender explained he was 'driving to a mate's place'. It was not put against the appellant in the proceedings in the Magistrates Court, and not suggested before me, that his driving on that occasion was reckless or dangerous or had for similar reasons particularly attracted attention. It was also not suggested that the Rodeo was in an unroadworthy condition or being driven in dangerous circumstances, such as with malfunctioning tail lights at night.

7 The offender was found not to be authorised to drive the Rodeo. He had been disqualified from holding a motor driver's licence for life by two previous court orders (I note from his record that there were in fact three such orders, all for DUI offences: one on 19 January 2004, one on 21 December 2004 and a third on 10 March 2009). He was also subject to two previous court ordered licence suspensions.

8 The offender was arrested and it was found he had consumed alcohol. Following a breath analysis, his blood alcohol level was calculated back to the time when he was stopped, at 0.157 g of alcohol per 100 ml of blood.

9 In addition, the licence of the Rodeo was found to have expired about 11 months earlier, on 19 June 2008, and the licence plates on the vehicle were found not to be those issued for the Rodeo. The offender's explanation for the former was that 'I am not able to licence the vehicle because of my drink-driving charges' and, for the latter, that the Rodeo was 'out of rego, so I found [the licence plates] and put them on'.

10 On 20 July 2010 in the Busselton Magistrates Court, before Magistrate Pontifex, the offender pleaded guilty to the four charges arising out of those matters, and the learned magistrate sentenced him on each. For the DUI offence contrary to Road Traffic Act 1974 (WA) s 63(1) the learned magistrate sentenced him to a term of 12 months' imprisonment to be immediately served and disqualified him 'permanently'. For the driving while disentitled offence, contrary to Road Traffic Act s 49(1)(a) and s 49(3)(b), the learned magistrate sentenced him to a term of 6 months' imprisonment to be immediately served, concurrent, with a disqualification of 9 months cumulative. For the driving an unlicensed vehicle offence, contrary to Road Traffic Act s 15(3), read with s 15(1), the learned magistrate sentenced him to a fine of $300, and ordered him to pay a half annual licence fee of $119.75. Finally, for the driving with false number plates offence, contrary to Road Traffic Act s 97(2)(f)(iii), the learned magistrate sentenced him to a fine of $500, and ordered him to return the number plates to the relevant government department.

11 Counsel for the offender had put a plea in mitigation to the learned magistrate, who also had the benefit of a pre-sentence report and a number of references, including one from the offender's employer. It was not in contest before me that the following emerged from that body of material. The quotations are from the plea in mitigation made in the Magistrates Court (20 July 2010, ts 4 - 9).

12 The offender was 39 years old at the time of the offending. He had a record of traffic offences 'borne out of alcohol problems'. The record was 'atrocious' for 'this type of offending'. The offences included seven prior offences of driving while disentitled (September 1999, June 2002, two in January 2004, January 2008, February 2008 and February 2009); five DUI offences (April 1994, September 1996, January 2004, September 2004 and February 2009); four offences of driving with a blood alcohol level in excess of 0.08% (November 1990, June 2002, January 2004 and February 2008); two offences of driving with false number plates (September 2004 and February 2009); and one offence of driving an unlicensed vehicle (February 2009).

13 In January 2004, he had received his first custodial sentence, a term of imprisonment of 4 months, suspended for 12 months, for a driving while disentitled offence. In March 2009, he had received his only other custodial sentences, when he was sentenced to a term of immediate imprisonment of 6 months for the February 2009 DUI offence and a term of immediate imprisonment of 4 months cumulative for the February 2009 driving while disentitled offence. He served 5 months of the 10 months before being released on parole in August 2009. His period of parole expired in January 2010 without any breach.

14 On the offender's release from imprisonment in August 2009, he was 'determined that he would retain control over his drinking'. He had 'hated' his time in gaol. For a time after his release the appellant's drinking was 'well and truly under control'. He secured employment on a stud farm in the Busselton area which was prepared 'to give him a go'. He worked hard and well, and showed he could work unsupervised. In late 2009 he attended two sessions with the South West Community Drug Service Team.

15 However, as time passed the offender found his drinking increasing. He began to drink heavily, on weekends. Although his drinking did not revert to the levels before his imprisonment, 'by all measures' it became excessive again. On Saturday 15 May 2010, the day of the present offending, he had been 'bored', he had begun drinking 'quite early', and he had decided to visit a friend 'a short distance away' to get a heater which he needed. He was stopped during this driving.

16 When the offender was charged with the present offences he was 'extremely angry at himself'. The people around him caused him not to give up, and his reflection made him realise he could do something about his drinking 'because for a significant period' following his release from gaol he had 'managed to keep alcohol under control'.

17 Over the period since being charged, up to the sentencing hearing before the learned magistrate, the offender had followed a number of strategies in relation to his drinking and enjoyed a range of supports from the community of his friends, work mates and his employer. By the time of the sentencing hearing before the learned magistrate his drinking had been 'severely curbed'.

18 As to the strategies the offender had followed, these included several new measures: he was attending meetings of Alcoholics Anonymous; he enrolled in and began to attend a 20 week course for anger management, and relationship and communication skills to learn strategies to recognise immediately the consequences of his actions and to consider options rather than act on impulses; and he initiated contact again with the South West Community Drug Service Team.

19 The offender also further developed strategies he had initiated on his release from prison. These were strategies for the management of his time after work and to delay and reduce his consumption of alcohol, such as busying himself in and about his accommodation.

20 As to the supports from his community that the offender had received, these were supports from those with whom the offender worked and from others, particularly from his employer. His employer had arranged for him to have accommodation within walking distance of the stud farm, thereby moving him out of his former accommodation (in a town) to a place where he no longer had easy access to supplies of alcohol. His employer had also arranged for the offender's transport to the 20 week course, which his employer insisted he attend; for his transport to meetings of Alcoholics Anonymous; and for meeting other transportation needs of the offender.

21 The offender had agreed with his employer to attend the 20 week course and meetings of Alcoholics Anonymous, to place the Rodeo on blocks when it was returned to him, not to drink on the stud farm at any time and not to drive a vehicle on any public road at any time. If the offender failed to keep his word on any of these, he would immediately resign: he acknowledged he would 'not be given second chance in any circumstances'. His employer confirmed in his reference for the Magistrates Court that if the offender failed to attend any of the agreed upon counselling sessions without proper reason, such as illness, his employment would be terminated.

22 It was common ground before me that his employer only became aware of the offender's alcohol problems when the employer became aware of the charges for the present offences. In addition to these supports from his employer, references from those who worked with him and friends indicated the support for the offender from those around him through encouragement, advice and transport.

23 As a result of all of these matters, by the time of sentencing, at the end of every work day 'instead of consuming up to a dozen cans of beer' the offender was down to four, perhaps five, 'and some of these [were] light beers'. Although he had not stopped drinking, his drinking had 'got to stop fairly soon, but that is where he's headed'. A number of the references for the offender attested to his good character.

24 After hearing from the prosecutor in reply, the learned magistrate said this, as to the present offending and the offender's record, alcohol problem, response to his imprisonment and efforts to address his alcohol problem with supports from others (20 July 2010, ts 10 - 11):

Mr Patterson, I will have to sentence you today for these four driving matters. Clearly the most serious of those is driving with a cancelled licence and driving under the influence of alcohol where the reading was 1.57, so you were well and truly drunk when you drove that car and you have a record which isn't mitigatory for you; it doesn't help you. You have previous convictions for disregarding the law in terms of driving with a cancelled licence since you have a number of previous convictions for driving under the influence which has seen you being barred from driving permanently.

It's a serious grouping of offending because it also endangers the community when you get behind a wheel and you shouldn't be driving if you drive drunk, and you have also driven with false plates on the car, so all in all it's a serious series of offending, and I accept what the sergeant said about the risk that you pose to the public when you do drive when you have been drinking and the pre-sentence report tells me that drinking is your primary trigger to offending. If it wasn't for drinking I suspect you would be a highly law-abiding person.

Also, too, given that you served a term of imprisonment for exactly this type of offending before, I have to take it, Mr Patterson, that you understand the consequences of this type of offending and Mr Laurino, in his very full plea on your behalf, said that you have had a taste of it, you didn't like it, but that didn't stop you reoffending again. You have reoffended in exactly the same way.

There are some good things to be said on your behalf. You are a very fortunate individual with significant support from your employer and those in your community who care about you and have tried to put in supports for you. In view of your previous record and the circumstances of this offending, clearly the only appropriate sentencing option to the court available is imprisonment. The main question I have to grapple with today is whether it should be suspended or whether you should serve it immediately.

Now, the main purpose of suspending a sentence for someone in your position is to allow you to rehabilitate yourself and to hopefully put yourself in a position where you won't reoffend again. The question which is asked to some extent is that you have started to engage in assistance in the community for your drinking problem, your employer has put in place good guides, parameters of your employment which would helpfully, hopefully, see you not be at risk again.

All things being equal, if you stood before me today and said, 'Look, I've been two weeks without a drink,' even a week without a drink, then the court would have some degree of confidence that you wouldn't reoffend, but you're standing before me today, Mr Patterson, as a man who's still drinking four or five drinks a day, as Mr Laurino was saying. Some are light. You're still drinking and that gives the court great misgivings that despite all your good intention and support you have from the community and your employer and your friends, while you're still drinking you will reoffend. My view of that is if I was to suspended that sentence today I would essentially be delaying the inevitable, and I don't think that the court can risk the community's safety.

So for those reasons, Mr Patterson, I don't believe it's appropriate that a term of imprisonment should be suspended.

25 By appeal notice dated 13 August 2010, the appellant applied for leave to appeal against the sentence imposed by the learned magistrate, on a single ground. He also applied for bail pending the determination of his appeal.

26 By orders made on 19 August 2010, McKechnie J granted bail on a number of conditions and ordered the application for leave to appeal and the appeal be heard together. He also ordered that an additional ground of appeal might be added within seven days.

27 On 22 September 2010, the appellant filed a minute of proposed grounds of appeal, the effect of which was to propose the addition of a second ground of appeal. Amendments to those two grounds are reflected in how they appear in the appellant's document for the appeal, 'Final Proposed Grounds of Appeal and Submissions'. The counsel for the respondent did not indicate he had any objections to the appeal being considered on the basis of those amended grounds, which are as follows:

Ground 1

The sentence of 12 months immediate imprisonment imposed for the offence of driving under the influence was, in all the circumstances, manifestly excessive:

Particulars of circumstances:

1.1 the plea of guilty;

1.2 the Appellant's antecedents;

1.3 the circumstances of the offending;

1.4 the degree of community based support available to the Appellant;

1.5 the term was beyond an appropriate sentencing range.

Ground 2

The learned sentencing Magistrate erred when she found the Appellant had not rehabilitated and therefore determined, in all the circumstances, not to suspend the term of imprisonment:

Particulars of circumstances:

2.1 the Appellant was actively engaged in his rehabilitation;

2.2 the Appellant had dramatically reduced his alcohol intake;

2.3 the pleas of guilty;

2.4 the circumstances of the offending;

2.5 the Appellant's antecedents;

2.6 the degree of community based support available to the Appellant;

2.7 Her Honour viewed suspension as delaying the inevitable.

28 It will become apparent from what follows that I consider leave to appeal should be granted on each of the two amended grounds, applying the test from Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA), that of a 'rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect it has a real prospect of success'.

29 After reviewing the law applicable to determining an appeal against sentence on grounds like the present ones, I will review each ground, beginning with the second: I will start there for reasons which will shortly become apparent.

Law applicable to an appeal against sentence of the present kind

30 Counsel for the appellant appeared clearly to confirm at the initial hearing on 1 October 2010 that the appeal concerned only the learned magistrate's determination not to suspend the terms of imprisonment she imposed. Counsel in so doing appeared clearly to confirm that it was not contended that the learned magistrate had erred in determining that a custodial sentence was appropriate, or in determining on the lengths of the terms she imposed.

31 At one point, counsel for the respondent appeared to contend for, although he did not strongly press, the proposition that a sentence may not be manifestly excessive (see ground 1) by reference only to the sentencing judge's determination that its term of imprisonment should not be suspended. I disagree. In view of the location of a sentence of a suspended term of imprisonment in the hierarchy of sentencing options (see Sentencing Act 1995 (WA) s 39(2)(f) and s 39(2)(g)) the contrary cannot be sustained. See also Logan v Kuser [2008] WASC 65 [20] (Johnson J).

32 At the same time, in the course of my consideration of the appeal following the initial hearing, I found the apparent confinement of ground 1 difficult to square with the formulation of the ground as amended, most notably with particular 1.5 of that ground. It appeared to me that the confinement may have held for the original ground of appeal, and for ground 1 as formulated in the minute of proposed orders.

33 However, ground 1 as it appeared in the 'Final Proposed Grounds of Appeal and Submissions', which added particular 1.5 and narrowed the ground to 'the sentence of 12 months' immediate imprisonment' for the DUI offence, appeared clearly to make the length of the term of imprisonment a consideration in determining whether the sentence imposed for that offence was manifestly excessive.

34 In addition, the written submissions of the parties, including their references to authorities on sentencing for DUI offences and offences of driving while disentitled, also appeared to be intended to have me consider the issue of the length of the term of imprisonment, as well as that it was to be served immediately.

35 In the event, I recalled the parties for a further hearing on 18 October 2010 at which I had them address me on ground 1, not confined in the way I had first understood counsel for the appellant to confine the appeal. I did this only after considering whether or not it was appropriate to leave matters as they appeared to me from the initial hearing, bearing in mind that initial hearings should not be converted to a preliminary hearing of an appeal: see R v Baldock [2010] WASCA 170 [28] (Pullin JA & Kenneth Martin J).

36 However, I concluded that there was a significant risk that, by reason of a possible misunderstanding between counsel for both parties and myself at the initial hearing, I would do a disservice to the parties' submissions, including their written submissions, on the final version of the grounds of appeal on which they wished this appeal decided.

37 The law applicable to appeals where it is contended there have been errors of the kinds in grounds 1 and 2 in the present appeal has recently been stated in Anderson v Little [2009] WASC 143 (Jenkins J), itself an appeal by an offender against sentences of immediate imprisonment of 12 months each for a DUI offence and an offence of driving while disentitled. I gratefully adopt the following [36] - [43]:

The imposition of a sentence is an exercise of judicial discretion. The principles upon which an appellate court must deal with an appeal against sentence were restated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671. It is not sufficient that an appellate court may take a different approach or impose a different sentence. It must be demonstrated that the sentencing judge erred in the exercise of his or her discretion: House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ said:

'As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy" [25].'

'And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies [27].'

In The State of Western Australia v Gibbs [2009] WASCA 7 [54] - [55] Steytler P, McClure J [sic] agreeing, said:

' ... it is necessary to bear in mind that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale [58], Kirby J said:

'Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it ... As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.''

'... it is very difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court.'

In Chan v The Queen (1989) 38 A Crim R 337, 342 Malcolm CJ said:

'To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.'

Despite the subsequent enactment of the Sentencing Act 1995 (WA) (the Sentencing Act) the principles enunciated by Malcolm CJ still apply in respect to appeals against sentence.

When considering what has been described as the standards of sentencing customarily observed with respect to the crime by examining other cases, it is apposite to remember what Hunt CJ at CL said in the New South Wales Supreme Court (with the concurrence of other members of that court) in R v Morgan (1993) 70 A Crim R 368, 371:

'It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.'

38 However, in Anderson the grounds of appeal did not include that the sentence of imprisonment should have been suspended. For my purposes, it is appropriate briefly to summarise the law applicable in that regard.

39 A sentencing judge, having considered that a term of imprisonment is the only appropriate penalty (Sentencing Act s 76(2)), must proceed to determine whether or not to suspend the term. In determining whether or not to exercise the power to suspend the term, the sentencing judge must 'look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender': Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J). That power 'is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation of a particular offender': Dinsdale [26] (Gaudron & Gummow JJ); see also [18] (Gleeson CJ & Hayne J) and [85] - [86] (Kirby J).

40 I turn then to consider ground 2 of the appeal, alleging specific error, before considering ground 1, which does not put any specific error but rather alleges that the sentence itself manifests error (see R v Tait (1979) 24 ALR 473, 476).

41 It was common ground that this ground of appeal asserted that there had been specific errors of fact and of law. The error of fact asserted was an alleged finding by the learned magistrate that the appellant had not been rehabilitated. The error of law asserted was that the learned magistrate allegedly had therefore determined that the terms of imprisonment could not be suspended. As will be seen the errors as formulated are not made out; but I consider the parties proceeded on the basis that the ground was sufficient to allege an error of law and an error of fact of closely related kinds.

42 Counsel for the respondent in fact conceded that such an error of law had been made out in that an error 'of principle' had been made by the learned magistrate when she stated that the 'main purpose of suspending a sentence for some one in your position is to allow you to rehabilitate yourself and hopefully put yourself in a position where you won't offend again' (20 July 2010, ts 11). I consider that this is an error of law: see Dinsdale [26] (Gaudron & Gummow JJ).

43 I further consider that the learned magistrate in fact approached the question whether or not it was 'appropriate' to suspend the terms of imprisonment she imposed by reference to that purpose. She did this by making her answer turn on the fact, which was not in contest before me, that the appellant as at the time of sentencing had not stopped drinking altogether. That is, the learned magistrate's error of law affected her determination whether or not to suspend the terms of imprisonment.

44 That conclusion makes it unnecessary for me to consider whether or not, as counsel for the appellant put to me in both his written submissions and oral argument, the learned magistrate erred in law by not adjourning the sentencing for one, two or three months or by not suspending the terms of imprisonment on conditions.

45 That conclusion might also be seen to make it unnecessary for me to consider whether or not I should admit in the appeal evidence that the appellant has since the sentencing stopped drinking altogether, other than for the purpose of any re-sentencing if the appeal is upheld. That evidence is from his landlord and from a person from his work who has transported him to meetings of Alcoholics Anonymous, as well as from the appellant himself. However, as I will indicate below, that evidence is relevant to whether or not the appellant's circumstances, particularly the supports he has received to enable him to address his alcohol problems as he has, are such that a suspended sentence would be a reasonable sentencing disposition in this case for the purposes of the application of the 'proviso' in Criminal Appeals Act 2004 (WA) s 14(2).

46 The conclusion as to the error of law makes it unnecessary for me to determine whether or not the learned magistrate made the error of fact alleged. However, I should indicate my conclusion that she did not, but made another closely related error, as the closely related error of fact goes to the error of law that I consider was made by the learned magistrate.

47 It seems to me that it had not been put to the learned magistrate that the offender had been rehabilitated, but rather that he had sufficient prospects of, or had made sufficient progress towards, rehabilitation so that any term or terms of imprisonment should be suspended. The learned magistrate did not assess those prospects to be sufficient because of the fact that the appellant had not stopped drinking altogether. As counsel for the appellant put to me, in my view, in so doing the learned magistrate failed to give sufficient weight to the circumstances that had been put to her in the plea of mitigation. Those circumstances were of the new steps and the development of previous steps the appellant had taken, the support that he had from those around him, and the results he had achieved in the time since the present charges had been laid against him.

48 This failure was an error of fact because it meant that the discretion whether or not to suspend the terms of imprisonment had in reality not been exercised as Dinsdale required. See Salkilld v The State of Western Australia [2010] WASCA 22 [19] (Owen JA, Wheeler & Newnes JJA concurring).

49 Counsel for the respondent, having conceded there had been an error 'of principle' made by the learned magistrate, accepted that the appeal must succeed unless he discharged the burden on the respondent cast by Criminal Appeals Act s 14(2). That provision, the 'proviso', states that a court may dismiss an appeal in which a ground is decided in favour of the appellant if the court 'considers that no substantial miscarriage of justice has occurred'. In its application to appeals against sentence the proviso means that the respondent must establish that 'error or errors made by a court at first instance would not have led to any reduction in the sentence that was imposed by that court': Joyce v Gee [2010] WASC 76 [34] (Mazza J). I understand this to mean that no sentencing officer could reasonably have imposed a lesser sentence than that in fact imposed.

50 To determine whether or not the burden has been discharged in this case I return to the circumstances of the offending and the offender. I have already described these in some detail. I now must consider whether or not those circumstances meant there could not reasonably have been any sentence of imprisonment other than one to be immediately served, even if there had not been the errors referred to. I leave aside the length of the sentences in this case, to which I return in relation to ground 1.

51 As to the circumstances of the offending, these were, while serious, in my view not the most serious of their type.

52 This offence, often described broadly as driving while under suspension as a result of court order, is usually seen as a serious offence 'because the offence involves a deliberate contravention of a court order': Anderson v Little [49], referring to Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530.

53 Further, the number of previous such offences, at least where it is in the order of the number in this case (being seven), and where they included four over the period January 2008 to the date of the present offending in May 2010 (bearing in mind the five months of his imprisonment in 2009), goes to show the driving while disentitled offence is more serious than otherwise. This is because the offender is manifesting a continuing attitude of disobedience to law: see Dragon v The State of Western Australia [2008] WASCA 252 [58] (Buss JA, Wheeler & McLure JJA concurring in this respect); Anderson v Little [51]; McDonald v White [2007] WASCA 213 [30] (Steytler P, McLure JA & E M Heenan AJA); and Nguyen v Espinoza [1999] WASCA 87 [7] (McKechnie J). Such account may be taken of that prior offending without the offender being again punished for previous offences: see Reid v The State of Western Australia [2010] WASCA 70 [11] (Buss JA).

54 Further, the driving while disentitled offence was aggravated by the fact that the appellant was driving under the influence of alcohol (see Anderson v Little [51]); the driving involved the use of false number plates, which might be seen as an attempt to conceal the fact he could not licence the vehicle because of his prior DUI offences; and the driving was by an owner of an unlicensed motor vehicle on a public road, the owner thereby having not borne the burden of compulsory insurance. However, in considering these aggravating factors, care must be taken to ensure the appellant is not punished twice for the same behaviour, given that he had also been charged with separate offences in those three respects: Anderson v Little [51].

55 At the same time, there are still more serious forms of the offence of driving while disentitled, as where the vehicle involved was unroadworthy or being driven in dangerous circumstances; where the driving had been over a long distance; or where the driving was reckless or dangerous: see Anderson v Little [48], [51]. None of those circumstances were present in this case.

56 The DUI offence was also serious; however, it did not involve a blood alcohol level as high as that in Anderson v Little (0.312 g of alcohol per 100 ml of blood, calculated to be 0.303 at the time of the offence). Again, the lack of any evidence of the vehicle being unroadworthy or driven in dangerous circumstances, over a long distance or in a reckless or dangerous manner may be noted.

57 I turn then to the appellant's personal circumstances. Here I note his pleas of guilty, which I accept as having been made at the earliest opportunity. In determining what allowance should be made for such a plea in this case, even if the appellant might be seen to have been caught red-handed, there should be a recognition of the utilitarian value of the plea and (if present) remorse: see Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [38] (Steytler P, Wheeler, McLure & Buss JJA, Miller JA concurring). Here there is evidence of remorse in the offender's anger with himself. I also note the offender's steps towards addressing his alcohol problem, between the time of the offence and date of sentencing, and the evidence of his otherwise good character.

58 At the same time I note the offender's record, being the whole of his traffic record. A record of that kind goes to reduce the credit an offender might otherwise receive for the mitigating matters of all of the kinds referred to: see Anderson v Little [20] - [21]; and Griekspoor [71]. I note that a number of authorities referred to me by the parties have addressed the effect of prior offences of driving under suspension on the determination whether or not to suspend terms of imprisonment in cases where there were pleas of guilty. I particularly note the following from Sheiner v Roberts [2009] WASC 281 [16] - [17] (McKechnie J):

Continued offending by driving under suspension displays a serious disrespect for lawful authority and a disregard for the privilege of driving. In such circumstances the principle of deterrence, general and in particular personal, assume a greater prominence than in some other offences and issues of character and hardship assume a lesser prominence.

This is why it is an unusual case that repeated offences of driving under suspension will attract anything other than a sentence of imprisonment to be immediately served. This is not and should not be seen as a statement of principle but as an observation of sentencing patterns.

59 See also O'Brien v Ritchie (Unreported, WASC, Library No 990123, 17 March 1999) (McKechnie J) (7), quoted with approval in Griekspoor [89] - [90] and Anderson v Little [85].

60 However, as Sheiner and O'Brien indicate, it is possible a sentence of imprisonment for driving while disentitled may be suspended even where there has been prior offending of that kind. At the same time, the circumstances would likely be unusual. O'Brien was itself a case where, notwithstanding three prior convictions for driving while disentitled, McKechnie J re-sentenced an offender to a sentence of suspended imprisonment for a fourth offence of driving while disentitled. Also, Dinsdale indicates that all of the circumstances must be considered. Further, as is noted in Sheiner, the matter of unusualness is not one of sentencing principle: see also Cross v Cook [2001] WASCA 242 [11] - [15] (Miller J).

61 I have reviewed the authorities referred to by the parties on sentencings for the offence of driving while disentitled where the offender had prior convictions for the same offence. There were 36 authorities in all, most of which are in a table provided in Rossiter v Francisty [2005] WASC 270 (McKechnie J). Subsequent authorities, as well as Rossiter itself, are added to the table provided in Sheiner (while ones earlier than 1999 are deleted). The other authorities not included in either table are Sheiner itself and Nguyen. In my review of the authorities in the tables, I have for most of them confined myself to the details provided in the tables. However, I have particularly examined the authorities themselves in which sentences of suspended imprisonment were upheld or imposed on appeal and other authorities to which the parties particularly directed my attention.

62 In an appeal like this one, it is important in drawing on authorities to which parties refer the court to note that, 'although examples of cases provide some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care': Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42] (Miller J) (referred to with approval in Bell v Wesley [2007] WASC 264; (2007) 180 A Crim R 122 [38] (Johnson J)).

63 It follows that particular care is needed in relying on tables of the kind in Rossiter and Sheiner, which abstract from the circumstances of the authorities they include. It may not be possible to extract 'tariffs' of sentencing from them: see Bell [39] (Johnson J, referring to the table in Rossiter and another authority in the Sheiner table, Anderson v Heath [2005] WASC 253).

64 However, in my view, the tables in Sheiner and Rossiter contain sufficient information as to the offenders' circumstances in the authorities they include to enable me to extract useful information as to sentencing patterns and to direct my attention to authorities of particular interest in this appeal. From this information, a conclusion as to standards of sentencing customarily observed for the offence in question may be drawn.

65 Further, I respectfully disagree with Johnson J's reading of the use made of the authorities set out in the table in Rossiter and of the use made of the authorities referred to compendiously in Anderson v Heath. I consider that McKechnie J in Rossiter and Le Miere J in Anderson v Heath were using their authorities as I have indicated I have used mine.

66 Of the 36 authorities on sentencing for the offence of driving while disentitled to which the parties referred me, only seven involved suspended sentences upheld or imposed on appeal. There was one other authority, which involved suspended sentences not challenged on the appeal: Jennings v Carson (Unreported, WASC, Library No 980608, 21 October 1998) (Miller J) (which also involved a sentencing for an offence of DUI). Eleven of the 36 authorities were cases where the sentencing had also been for a DUI offence (or offences). Putting aside Jennings, only two of those 11 (Logan and Stewart v Waghorn [1999] WASCA 150; (1999) 107 A Crim R 288) had involved a suspended sentence upheld or imposed on appeal.

67 I note that the largest number of prior convictions for driving while disentitled in the subset of seven authorities was five convictions: Chinnery v Hansen [2001] WASCA 349; (2001) 125 A Crim R 426. In that case however, the only offending was driving while disentitled, the offender had not previously been imprisoned, there had been a short period of incarceration on remand on that offending with a major effect on the appellant and there was a psychiatric condition associated with the offending which would have made imprisonment particularly onerous.

68 However, I consider that I should be careful not to overemphasise differences between the five prior offences in Chinnery and the seven prior offences in the present case: see Mason v Morrison [2004] WASCA 181 [12] (Miller J), where the distinction between seven and nine prior convictions for DUI offences 'was of no real significance in the end result'. At the same time, the number of prior offences of driving while disentitled, seven, is not without significance: see Bell; and McDonald [30] (Steytler P, McLure JA & Heenan AJA). Overall, consistently with Dinsdale as explained in Cross, it is necessary for me to attend to all of the circumstances in this case.

69 The circumstances in this case that counsel for the appellant particularly relied on as indicating that the learned magistrate ought to have suspended the sentences of imprisonment were, echoing passages in the pre-sentence report, that the appellant had 'demonstratively changed his circumstances so as to address the root cause of the offending behaviour', being his alcohol problem, and in doing so had secured employment, that did not require him to drive, with an employer who had taken an active role in supporting his rehabilitation efforts with assistance from others around the appellant.

70 I have noted that indications of progress towards addressing a substance abuse problem associated with offending were acknowledged in a number of the authorities, including those where the sentence following appeal was of immediate imprisonment. However, in none of the 36 authorities to which counsel for the parties referred me were there indications of supports for the offender embarking and remaining on that path as substantial as those in the present case. Further, in my view, the indications of the supports would gain weight in the determination of whether or not to suspend the sentences of imprisonment, to the extent that there were indications of the offender's success in addressing his alcohol problems. In my view, the evidence the appellant sought to have admitted, that since the sentencing he had continued to reduce the amount he drank and had stopped drinking altogether, was relevant to such a determination. That evidence is from his landlord, a person from his work who has transported him to meetings of Alcoholics Anonymous, and from the appellant himself.

71 Evidence of that kind would, it seems to me, be relevant in any re-sentencing if the present appeal were upheld. However, for the purposes of determining whether or not the proviso applied in relation to ground 2, and thus whether or not to uphold the appeal, I note the provision of Criminal Appeals Act s 14(5), to which counsel for the appellant referred me in oral argument. That provision permits the court 'on an appeal against a sentence' to have 'regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard'.

72 I consider that, on Mieli v Beros [2006] WASC 294 [7], [8] (Miller J), Matthews v Whalley [2010] WASCA 165 [20] - [23] (Murray J) and Wiltshire v Mafi [2010] WASCA 211 [47], [48] (Pullin & Buss JJA & Mazza J), the evidence the appellant sought to have me take into account is indeed admissible under s 14(5) for the purpose of determining whether or not the proviso in s 14(2) applied.

73 I have noted also the document 'Mr Dean Patterson - Weekly Counselling' that counsel for the appellant handed up to me at the hearing on 18 October 2010, without objection from counsel for the respondent. This (undated) document was said to confirm the appellant's continuation of counselling in relation to his alcohol problem. This document does not in my view add anything significant for present purposes to what I am able to glean from the Meyer affidavit sworn 24 September 2009, which also goes to the appellant's involvement in counselling in relation to his alcohol problem.

74 I further note that the appellant's record of offences of driving while disentitled, while worse than that in any of the seven authorities I have considered in which suspended terms of imprisonment for driving while disentitled were upheld or imposed on appeal, was not by any means the worst for that offence in all of the 36 authorities to which I was referred: see Moody (nine offences); Bell (10 offences); Anderson v Little (10 offences); Findlay v The State of Western Australia [2007] WASC 61, (11 offences); Anderson v Stilwell [2006] WASC 257, (11 offences); Mason (11 offences); and Auburn v Sears (Unreported, WASC, Library No 970508, 2 October 1997) (Scott J) (19 offences). At the same time, account must also be taken of the fact of the prior convictions the appellant had received for DUI offences: Mason [21] (Miller J). In Mason however, there were nine such prior convictions: here there were, as has been noted, five, although I also note the appellant's four prior offences of driving with a blood alcohol level over 0.08% contrary to Road Traffic Act s 64. Finally, I have noted the observation in the re-sentencing in Anderson v Little [84] (Jenkins J):

As a general principle, offenders who repeatedly drive whilst disentitled, particularly when under the influence of alcohol, should expect to receive immediate custodial terms: Humble v State Solicitor for Western Australia [2009] WASC 99 [11].

75 I consider that, while this case is close to the line, on balance, having regard in particular to the circumstances counsel for the appellant relied on in particular as indicating the learned magistrate ought to have suspended the terms of imprisonment, together with the indications of the success of the appellant in addressing his alcohol problems, this is a case in which it would not have been unreasonable for a sentencing judge, proceeding in accordance with Dinsdale, to have suspended the appellant's terms of imprisonment. Those circumstances and those indications appear to me to have significant force in addressing the concerns in the nature of general and special deterrence to which it appears to me Jenkins J in Anderson v Little [84] was referring. I consider then that the respondent has not discharged his burden of proof in the proviso under Criminal Appeals Act s 14(2).

76 I would thus uphold appeal on the present ground. This would make it strictly unnecessary to consider ground 1. However, in my view I should proceed to consider ground 1 in deference to the argument of the parties and in case I am in error on ground 2.

77 In considering whether or not the sentence of 12 months' immediate imprisonment for the DUI offence was manifestly excessive, I must consider the matters from Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ). These are: the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupied on a scale of seriousness of crimes of that type; and the personal circumstances of the offender.

78 The maximum term of imprisonment for the DUI offence was 18 months (Road Traffic Act s 63(2)(c)). The term of 12 months' imprisonment to be immediately served was, allowing for a discount for the early plea of guilty and before taking account of the personal circumstances of the offender and the factual circumstances of the offending, towards the upper limit of the range of sentences the offender could have received: see Anderson v Little [47].

79 As to the standards of sentencing customarily observed with respect to the offence, like Jenkins J in Anderson v Little (see [65]), I was not referred to 'any published judgment which has considered the standard of sentencing for the offence of DUI'. Further, I note that none of the authorities to which I was referred involved a sentencing for a DUI offence on its own, and the parties' research did not produce any. In addition, I note that Jenkins J considered she had been referred to 'an insufficient number of cases involving the sentence of DUI for [her] to determine what the standard range of sentences are for that offence' [65]. However, her Honour appears to have been referred to a total of seven authorities (excluding Moody, on which her Honour appears to have placed some reliance for the purpose of assessing the sentencing for the offence of DUI: see [66]).

80 In my view I was referred to a sufficient number of cases of sentencing for a DUI offence (11, including Anderson itself as well as Moody) from which I could determine what standards of sentencing are customarily observed with respect to that offence.

81 The range of sentences for the offence or offences of DUI in the 11 authorities was from 4 months' immediate imprisonment (a pre-transitional period sentencing) to 10 months' immediate imprisonment (a transitional period sentencing), save for two of 12 months' immediate imprisonment (one a pre-transitional period sentencing and one a transitional period sentencing). Those two were Auburn and Findlay, respectively. However, the length of the 12 months' pre-transitional period sentence in Auburn had not been challenged on appeal, the sole ground of appeal going to the failure to make the offender eligible for parole. The 12 months' transitional period sentence in Findlay may be explained as a totality case (see Anderson v Little [64]).

82 In relation to matters of totality in sentencing for a number of traffic offences, including that of DUI, where the offences were committed on a number of occasions, I note that in Abdullah v Mills [2008] WASC 128, referring to the decision in Logan and apparently referring to the decisions in McDonald and Moody, Johnson J said this:

In Logan v Kuser [2008] WASC 65 I made the comment that, on any interpretation, these last two cases are serious examples of offences of the relevant type committed in circumstances where there is a clear need for personal deterrence in view of the number of prior convictions. I should also add that there is a clear need for general deterrence because of the prevalence of offences of this type and the tragic consequences which result from time to time. Nevertheless, the Full Court has clearly indicated that, irrespective of the fact of previous convictions for the same offences and of the offender being subject at the time of offending to a non custodial order in relation to previous offences of the same type, total sentences for a number of traffic offences committed over a period of time and to which an offender pleads guilty should be approximately 10 to 12 months [20].

Here, however, the sentencing was for a number of traffic offences arising out of the same driving occasion.

83 In considering sentencing decisions made prior to the repeal of the transitional period provisions I must, of course, take account of the minimum custodial periods of the sentences in question: see The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [7] (Wheeler & Pullin JJA, Owen JA concurring), quoted in Anderson v Little [72]. Jenkins J notes that the requirements as to minimum custodial periods varied with whether or not such a sentence was imposed before the coming into force of the Sentencing Act; after that time, but before the advent of the transitional period; and during the transitional period: see [75] - [77]. However, in my view, it seems that the repeal of the transitional period provisions has no significant impact on the identification of the range I have indicated. I find support for that view in Jenkins J's conclusion in Anderson v Little [78] as to the range of sentences for driving while disentitled offences that she considered had been established prior to the repeal.

84 I have previously reviewed the relative seriousness of the DUI offence in this case, and the circumstances of the appellant. I particularly note that, after taking account of those circumstances, there is nothing in that seriousness, in my view, which would warrant a sentence of immediate imprisonment above the upper end of the range of 4 - 10 months as I have described, leaving Auburn and Findlay aside.

85 On that basis it might be concluded that the present ground of appeal should be upheld. However, it might also be suggested that the total effective sentence of 12 months' imprisonment, to reflect the totality of the appellant's offending, was not manifestly excessive, so that interference with a manifestly excessive component of that sentence would be mere 'tinkering': see Findlay [36] (Martin CJ). I took it that it was for that reason both counsel referred me to, and addressed argument to me on, authorities on sentencings for offences of driving while disentitled.

86 Jenkins J in Anderson v Little noted that a number of cases have considered standards of sentencing for driving while disentitled or driving under suspension, being Anderson v Heath, Rossiter, McDonald and Moody. Her Honour appears to have concluded that a range of up to 9 months' imprisonment was indicated by the cases, so that the sentence of 12 months' imprisonment (a transitional period sentence) was above the range [54] - [64].

87 I note that the range of terms of imprisonment for the offence or offences of driving while disentitled in the 36 authorities to which I was referred, ignoring one non-custodial sentence, was from 2 months (a pre-transitional period and pre-Sentencing Act sentence) to 10 months (a transitional period sentence), save for one of 11 months (a transitional period sentence), two of 12 months (one a pre-transitional period sentence and one a transitional period sentence) and one of 18 months (a pre-transitional period sentence). Those four sentences were in Bell, Auburn, Findlay and Nguyen, respectively.

88 However, in my view those four authorities either did not require a review of the appropriateness of the particular sentence or are readily distinguishable from this case. As I have indicated, in Auburn, where there were 19 previous convictions for driving while disentitled, the length of the 12 months' pre-transitional period sentence had not been challenged on appeal. The 12 months' transitional period sentence in Findlay, as I have also indicated, and the sentence of 18 months in Nguyen may be explained as totality cases (see Anderson v Little [64]). In both Findlay and Nguyen, offending on different occasions was involved. Here the offending arose out of a single occasion of driving.

89 The sentence of 11 months in Bell may be readily distinguished from this case. In Bell, there were 10 prior offences of driving while disentitled and the offender had also been sentenced for speeding in relation to the same driving.

90 Here, in my view, a sentence of 12 months' imprisonment for the DUI offence to reflect the totality of the offending, including the driving while disentitled offence and taking proper account of the driving of an unlicensed vehicle with false number plates, was manifestly excessive.

91 It follows that I would uphold the appeal on ground 1.

92 I have concluded this appeal should be upheld. Both counsel indicated that, were that to be my conclusion, I should proceed to re-sentence the appellant on the materials before me without further submissions from counsel. I will do so, subject to one matter I reach at the end of these remarks.

93 I have concluded that I would impose the same sentences as the learned magistrate including the fines, disqualification, fees and return orders she imposed, except that the terms of imprisonment I would impose would be conditionally suspended terms of imprisonment of 7 months for the driving while disentitled offence and 8 months for the DUI offence. The suspension would be for the reasons I have previously rehearsed. The period of suspension should be 24 months, the maximum allowed under Sentencing Act s 81(1), so as to reinforce the incentives to continue with the steps the offender is presently taking (with evident success) to address the conditions for his offending. The conditions would be for programmatic requirements under s 84A, which I would expect to complement those steps to the extent this was determined to be necessary.

94 I consider the penalty for the DUI offence should reflect the risk which the offender's driving posed for the community, albeit at what would appear to be a lesser level than that of the offender in Anderson v Little, but with account also taken of the proximity of the offender's previous offending of the same kind for which he had served a term of imprisonment. I have set the term for the driving while disentitled offence to better reflect that same proximity as well as the number of previous offences of the same kind.

95 I further consider that there should be a degree of partial accumulation of the sentences of imprisonment for the same reasons as those given by Jenkins J in Anderson v Little, that is, to reflect the fact the offender offended in different ways, even although at the same time, and to make sure that the total sentence reflects the course of the offender's criminal conduct viewed as a whole. That degree of partial accumulation should be 1 month of service of the 7 months sentence of driving while disentitled before beginning to serve with it the 8 months for the offence of DUI. This would yield a total effective term of imprisonment, conditionally suspended, of 9 months.

96 However, it would appear on the materials before me that the offender spent at least the time between his sentencing on 20 July 2010 and his release on bail on 19 August 2010 in custody for the present offending; there is no indication in the materials before me whether or not he spent any time in custody on the present offences before sentencing in the Magistrates Court. I did not take account of time in custody in determining whether or not to suspend the term of imprisonment: that was a decision I was able to arrive at without regard to that consideration; and I also noted that it was not contended before me that any such time meant the purposes of immediate imprisonment had been achieved in that way.

97 I consider that, while I am of course not in a position to backdate the sentence of imprisonment, it would be appropriate in determining the length of the terms of imprisonment in this case to allow credit for time spent in custody. See Sunfly v The State of Western Australia [2009] WASCA 22 [24] (McLure JA, Steytler P & Miller JA concurring); and LexisNexis, Criminal Law WA (at 19 October 2010) [SA s 76.22]; compare Salkilld [25].

98 I will hear from counsel as to that time before determining that credit.