Road Traffic Act 1974

Sentencing Act 1995

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999

House v R [1936] HCA 40; (1936) 55 CLR 499

Khan v Yates, unreported; SCt of WA; Library No 950600; 8 November 1995

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998

Narrier v Fallows, unreported; SCt of WA; Library No 970175; 11 April 1997

Nye v Lewis (1987) 4 MVR 511

Pink v Webb, unreported; SCt of WA; Library No 8207; 20 April 1990

R v GP (1997) 18 WAR 196

R v Liddington (1997) 18 WAR 394

R v Peterson [1984] WAR 329

R v Tait (1979) 46 FLR 386

1 McKECHNIE J: The appellant is a 43-year-old mother of three young children. In February 1999 she allowed her brother to stay with her. He was on home detention. The relationship deteriorated between them. On Sunday 24 February 1999 he fell into a rage. He was on heroin. He started smashing up the house, he threatened the appellant and her children. She got into her car with her children and drove off while her brother was throwing rocks.

2 She had been drinking extensively and was quite drunk. She drove recklessly. While the precise details are in dispute this much is clear: She drove at speed down the road nearly colliding with a parked car, she lost control and spun out onto the lawn of a nearby house and the car did a 360 degree turn. There were children playing nearby. She drove back towards her brother's vehicle, passing it on the left. She went back home. The driving took place over a short distance and in a short space of time. Her blood alcohol was 0.156.

3 The learned Magistrate rejected a call for a suspended sentence and imposed the following sentences: Driving under disqualification, 6 months; driving under the influence, 6 months; reckless driving, 3 months; a breach of a community based order, 3 months. All sentences were concurrent.

4 On 15 March 1999 the appellant was granted leave to appeal on the following grounds that the learned Magistrate failed to order that each of the terms be suspended pursuant to the Sentencing Act 1995 s 76 as a consequence of failing to properly consider:

(a) the place which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature;

(b) standards of sentencing customarily observed for offences of this nature;

5 Thus it can be seen, as counsel for the applicant put it today, the real issue is whether or not the sentences should have been suspended.

6 The appellant has had an unfortunate life. She has been in a number of violent relationships; she has battled alcoholism. In 1995 one of children lit a fire which destroyed their home, rendering her and her family virtually homeless for the next 2 years. She has health problems. She is trying to better herself by enrolling as a student at Curtin University and by assisting others as part of the Aboriginal Tutorial Assistance Program.

7 The circumstances of the offence were very unusual and the driving was, as I have said, of short duration. Unfortunately, it involved three serious offences. The offence of driving under the influence is the fourth offence. To that may be added an offence of driving with an excess of .08 and refusal of a breath test. This was her fifth offence of driving under suspension. There were other less serious traffic offences. I disregard the balance of the appellant's record.

8 The appellant failed to complete a CBO imposed for driving under suspension in 1995. She has not paid off fines imposed for other driving offences. The appellant pleaded guilty at an early opportunity. The sentence imposed is short. In my opinion each of these factors must be considered favourably in the exercise of a sentencing discretion. The reasons are expressed in O'Brien v Ritchie, unreported; Library No 990123; 17 March 1999. These factors may, on occasions, tip the balance in favour of a suspended sentence for the offence of driving under suspension.

9 The short space and duration of driving and the circumstances leading up to the driving in this case were very unusual. If that was all that had occurred and the offence solely was driving under suspension, I would have been inclined to have allowed the appeal. But that was not all. There was a charge of reckless driving. The appellant had her three young children in the car when she wilfully drove in a dangerous manner. Furthermore, she was, because of alcohol, incapable of properly controlling the vehicle. The circumstances, therefore, of this course of driving, while explicable, are inexcusable.

10 Her past record indicates an attitude towards the road traffic laws that is indifferent, to say the least. While this may in part be due to her alcoholism nevertheless it is also no excuse. Although counsel for the appellant has pointed to the week in prison as a salutary reminder and has urged on me that that sentence is sufficient, together with a suspended sentence, to keep her from offending in the future, having regard to her record and to the circumstances of this offence, I am unable to agree.

11 In my opinion a court is always going to be reluctant to sentence a person in the appellant's position to a term of imprisonment unsuspended. However, having regard to her past history, and in particular the safety of other people with whom she is likely to come into contact, in my opinion the sentence imposed here of 6 months concurrent for the various offences was in the circumstances the inevitable sentence and a moderate disposition. I would, therefore, dismiss the appeal.