Supreme Court of WA|2005-11-11|Before: McKechnie J

Rossiter v Francisty & Anor [2005] WASC 270 (11 November 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ROSSITER -v- FRANCISTY & ANOR [2005] WASC 270

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Road traffic, multiple offences of driving under suspension - Table of sentences commonly imposed for driving while suspended - Present sentences manifestly excessive

First Respondent : State Solicitor for the State of Western Australia

Second Respondent : State Solicitor for the State of Western Australia

1 I should first make particular mention of the stance of the respondent who, at relatively short notice, has provided considerable assistance in enabling me to deal with the matter. The respondent does not oppose my hearing the applications together, including the appeal. This is the latest in a series of cases where the State Solicitor, or the DPP, at short notice, has been prepared to assist in the expedition of appropriate cases. This contribution to the administration of justice should be acknowledged.

2 This is an application for bail and also an application for an extension of time and for leave to appeal the series of sentences imposed upon the appellant on successive occasions, the net result being that the appellant was sentenced to a term of imprisonment for 14 months and 1 day.

3 The appellant requires an extension of time which is not opposed. The chronology, which I take substantially from the respondents' outline, is this: the appellant has a very bad driving record but has not, it would appear, committed driving offences from about 1992 until last year. On 17 February 2004 he sustained his sixth conviction for driving without a motor vehicle driver's licence, coupled with driving an unlicensed vehicle, and driving a vehicle with forged or fraudulently altered number plates. He was fined.

4 On 15 July 2004 he committed his seventh driving while under suspension, coupled with excess of 0.05 (JO 7323/04). On 22 September 2004 he was convicted in relation to that offence, coupled with excess of 0.05. He received a fine and an 8 month sentence which was suspended. On 19 December 2004 he committed his eighth driving while under suspension, coupled with driving an unlicensed vehicle (MI 2369/05). On 4 January 2005 he committed his ninth driving while under suspension, exceeding the speed limit and driving an unlicensed vehicle (MI 1941/05). On 4 March 2005 he committed his tenth driving under suspension, coupled with driving a vehicle with forged or fraudulently altered false number plates, driving an unlicensed vehicle and giving false personal details to police (PE 15771/05).

5 He was dealt with in court somewhat in reverse because on 11 March 2005 he was convicted in respect of the tenth driving under suspension offence (PE 15771/05). He received a sentence of 8 months' imprisonment and that conviction also triggered the suspended sentence of 8 months imposed on 22 September 2004 for the seventh driving while under suspension (JO 7323/04). They were ordered to be served concurrently. On 29 March 2005 he was convicted of the eighth and ninth offences of driving while under suspension, coupled with driving an unlicensed vehicle, and driving without a licence (MI 2369/05 and MI 1941/05). He received two sentences of 6 months and 1 day which were concurrent with each other but cumulative upon the earlier sentences.

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

7 The respondent's counsel has very helpfully gathered together a table of offences which I include as a schedule to this judgment because it will be very useful in future. The appellant had reached the stage (leaving aside to some extent the earlier offences that had occurred a decade ago) where a sentence of imprisonment was not only open but inevitable, especially once he had further offended after being given the opportunity of a suspended sentence.

8 However, that is not the end of the matter. By reference to the schedule and the range of sentences customarily imposed, it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant and it is especially rare for a sentence to be imposed without parole eligibility. I am confident that had one magistrate dealt with all of the offences together then the sentence imposed would have been somewhere in the region of 8 months which, having regard to the adjustments necessary to be made under the Sentencing Act 1995 (WA), would have previously equated to a sentence of 12 months. Such a sentence would have encompassed the criminality of all of the appellant's offending.

9 It was an error for the last two sentences imposed to have been made cumulative upon the sentences of 8 months. I allow the appeal, set aside so much of the order of 29 March 2005 that made those sentences cumulative and in lieu thereof order that those sentences be served concurrently with the sentences of 8 months' imprisonment that were imposed on 11 March 2005.

10 By my calculations therefore the appellant is now eligible for release because his sentence of 8 months has in fact been served and so it is unnecessary therefore to grant bail because he has served the sentence as I have adjusted it.

STANDARDS OF SENTENCING CUSTOMARILY OBSERVED WITH RESPECT TO THE OFFENCE OF DRIVING WHILST SUSPENDED

Mason v Morrison [2004] WASCA 181

11 prior driving whilst suspended convictions, 9 prior DUI convictions; pleas of guilty, steps taken to address alcohol problem

Austin v Grapes & Ors [2004] WASCA 102

Early plea of guilty, 79 previous convictions for various minor offences (including 7 convictions for driving whilst suspended); domestic violence, substance abuse problems

6 months (each for driving whilst suspended offence - concurrent with each other, cumulative with the balance of the sentence)

30 month head sentence (incl 6 months): less one third for new sentencing regime, less 28% for early plea of guilty

31 August 2003: Enactment of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003 requiring the sentencing Magistrate/Judge to impose a sentence that was two-thirds of the sentence that the sentencing Magistrate/Judge would have imposed had the old sentencing regime been in operation at the time of sentencing (where the court is not following the practice of the court as established in accordance with the new sentencing regime).

Zammit v Illich [2003] WASCA 88

1 x Driving whilst suspended (speeding) committed 2 months after suspended sentence imposed in respect of earlier driving whilst suspended conviction

3 prior driving whilst suspended convictions (ie. the suspended sentence was imposed in respect of the 4th offence and the immediate sentences were imposed in respect of the 4th and 5th convictions)

Early plea, steps taken to address offending behaviour between commission of offence and sentence

3 months and 1 day (for 4th and 5th convictions - concurrent)

5 prior driving whilst suspended convictions; Plea of guilty; Major depressive disorder, chronic and severe

Sheppard v Blakey [2001] WASCA 309

Two sets of offences "closely connected in nature and circumstance" but "quite separate in time" (1 week)

2 prior convictions for driving whilst suspended (1 on fines suspension)

5 prior convictions for driving a motor vehicle without appropriate licence

1 prior conviction for breach of bail undertaking; Pleas of guilty

21 months total (after deducting 6 months for plea of guilty) - no eligibility for parole

1 x Driving whilst suspended: 6 months cumulative;

2 prior driving whilst suspended convictions (last occurring approx 4 years earlier); Plea of guilty at an early stage

Cross v Cook [2001] WASCA 242

(1 month of imprisonment had been served prior to the appeal being allowed)

Williams v Franzinelli [2001] WASCA 241

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

Plea of guilty, Offences committed whilst on parole

Initially 4 months (suspended) considered appropriate but was not open as Appellant on parole.

$4,000 fine and Work Development Order imposed in lieu

Dragic v Burrows [2000] WASCA 385

"Reasonably extensive record" of criminal and traffic convictions, 2 prior convictions for driving whilst suspended, plea of guilty

4 months (allowing for time already spent in custody)

(had earlier been sentenced for 6th and 7th convictions to 4 month suspended sentence - not regarded as aggravating but considered as conduct subsequent to relevant offences)

5 months (Head sentence) + 4 months (to be served concurrently)

Both committed less than 2 months following conviction for same offences

O'Brien v Ritchie (unreported, SCt (WA), Lib No 990123, McKechnie J, 17 March 1999)

(1 month of maximum security imprisonment had been served prior to the appeal being allowed)

Calway v Wiebe (unreported, SCt (WA), Lib No 990001, Miller J, 13 January 1999)

Jennings v Carson & Anor (unreported, SCt (WA), Lib No 980608, Miller J, 21 October 1998)

Krakouer v Durka (unreported, SCt (WA); Lib No 980595, 14 October 1998)

Auburn v Sears (unreported, SCt (WA), Lib No 970508, Scott J, 2 October 1997)

19 prior convictions for driving whilst suspended, plea of guilty

12 months, eligible for parole (length of term not challenged on appeal - appeal concerned parole eligibility)

Narrier v Fallows (unreported, SCt (WA), Lib No 970175, 11 April 1997)

6 prior driving without appropriate MDL convictions

8 months (total - suspended), 3 months' imprisonment had been served before hearing of appeal

Fernando v Keady (unreported, SCt (WA), Lib No 940135, Murray J, 4 March 1994)

4 prior convictions for driving whilst suspended; early guilty plea

Legislation Amendment and Repeal Act 2003

Administration Act 2003

Rossiter v Francisty & Anor [2005] WASC 270

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (71 paragraphs)

Rossiter v Francisty & Anor [2005] WASC 270 (11 November 2005)

Parties

Legislation Cited (2)

Cases Cited (5)