Court of Appeal (WA)|2004-02-19|Before: Ms J, Scott J, Smith J

Warren v Van Den Berg [2004] WASCA 32 (19 February 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WARREN -v- VAN DEN BERG [2004] WASCA 32

Criminal law and procedure - Appeal - Justices - Road traffic offence - Dangerous driving - Sentence - Fine of $600 and motor driver's licence disqualification for six months - Unrepresented appellant - Whether opportunity to put circumstances in mitigation - Need for licence for work purposes - Whether excessive punishment

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

Demarte v Fox, unreported; SCt of WA; Library No 980084; 26 February 1998

Jennings v Carson & Fletcher, unreported; SCt of WA; Library No 980608; 21 October 1998

Lewis v Bennett, unreported; SCt of WA; Library No 930406; 14 July 1993

McColgan v Seiler [2000] WASCA 168

Mullane v Smith (1989) 10 MVR 111

Nye v Lewis (1987) 4 MVR 511

Ogilvie v Mills, unreported; SCt of WA; Library No 940113; 2 March 1994

1 ROBERTS-SMITH J: On 17 November 2003 the appellant was tried and convicted before his Worship Mr Malley SM in the Armadale Court of Petty Sessions of one count of dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA) ("the RTA").

2 He applied for leave to appeal by notice dated 5 December 2003 and on 16 December 2003, Scott J granted leave to appeal on the ground that the learned Magistrate erred in imposing upon the appellant a disqualification of motor driver's licence for six months and a fine of $600 as a consequence of failing properly to consider:

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

(e) any opportunity for the appellant to make any comments in mitigation prior to sentencing.

3 The appellant has filed an affidavit sworn 4 February 2004 upon which he has relied in this appeal. A number of matters set out in the affidavit go only to the issue of conviction, not sentence; a fact recognised and acknowledged by the appellant on the hearing before me.

"The facts found against me were that I drove my vehicle in Bernard Street, Kelmscott in a manner which may be dangerous to the public or any person. However, I was driving in broad daylight below the speed limit for that street (namely approximately 30 kilometres per hour in a 50 kilometre per hour zone) and all witnesses agreed that my vehicle missed the complainant by a distance of approximately one metre. No-one was struck by the vehicle or in any way came in contact with the vehicle.

It is my contention that 15 year old Matthew Carniel deliberately stepped out in front of my vehicle and that at no point did I have any intention that my vehicle should come in contact with Matthew. Nevertheless, I accept that my decision to decelerate rather than to brake suddenly may, with the benefit of hindsight, have been an error of judgment on my part and I accept the Magistrate's decision to record a conviction.

However, I am including this information in my affidavit to show that the severity of the sentence is not relevant because such an incident would never occur again anyway and there is no need for a deterrent.

I believe the learned Magistrate erred in his judgment on the following points:

(a) the same Magistrate had previously heard matters brought before him by the boy's mother, Mrs Carniel, in relation to a dispute over fencing, property boundaries, removal of trees, a restraining order and other frivolous matters, in all of which I, as the respondent, was exonerated. In fact he refers to these matters in his summing up. I believe the learned Magistrate may have been influenced by his knowledge of these matters and his desire to see an end to the various litigation brought by the complainants.

(b) he failed to take into account that all witnesses agreed that my vehicle passed to the left of Matthew Carniel by a distance of at least one metre.

(c) he failed to take into account a number of discrepancies in the various witness statements, even though he acknowledged that the evidence of Matthew Carniel 'has to be viewed with some degree of care', and that the evidence of Mrs Carniel 'has to be viewed with a little degree of caution'.

Having found me guilty, the Magistrate failed to give me full and proper opportunity to make any comments in mitigation. The matters I would have brought up in mitigation are:

(a) that I have been employed for the past 10 years as the State Director of The Leprosy Mission which is a registered charity raising public awareness on leprosy and raising funds for the Mission's worldwide work. As such, I am involved in the preservation of human life and dignity. People affected by leprosy rely very much on my ability to raise awareness and funding, for which I need to be able to drive.

The primary nature of my employment is such that it involves regularly undertaking public speaking engagements at churches, community grounds, service clubs and schools, as well as promotional activities at various public events. Such appointments can be anywhere within Western Australia, including country towns. Such visits almost always involve me taking with me overhead projection and audio-visual equipment, supplies of brochures, displays and supporting merchandise. Such engagements cannot generally be undertaken by catching public transport. I have included in my appeal book a letter from my employer verifying the above.

(b) apart from some speeding infringements over the years I have no traffic record so this was, to all intents and purposes, a first offence. There was one other matter from 30 years ago which cannot be taken into account.

(c) because of the ongoing harassment from the complainant, my family and I had no alternative but to sell our family home and move to a new area. This in itself was a very costly exercise, without the imposition of a heavy fine or suspension of driver's licence.

I am aggrieved at the severity of the sentence and believe my motor driver's licence should not have been suspended and further that the fine is too high in the circumstances.

In the event that all of the above matters are disregarded, I respectfully submit that the fine should be sufficient penalty without the additional suspension of my driver's licence."

5 There is in the appeal book, as indicated by the appellant in that affidavit, a copy of a letter from The Leprosy Mission Australia national office in Victoria dated 10 February 2004. That letter does confirm that the appellant is the mission's sole employee in Western Australia and that he is relied upon very heavily to undertake regular public speaking engagements in the manner described in the affidavit.

6 The letter advises that the mission provides the appellant with a fully maintained vehicle in which to carry out his work, the nature of which regularly requires travel both on weekdays and evenings and across the suburbs and to various country towns. The author of the letter states it to be his firm belief that it would not be possible for the appellant to properly carry out these duties if his driver's licence continues to be suspended.

7 In his sentencing remarks, the learned Magistrate was clearly conscious that his remarks were made following the hearing of the prosecution, in the course of which the appellant himself gave evidence, and that his remarks on sentence would be understood in light of the evidence which had been given and the submissions which had been made.

8 His Worship, in arriving at his finding that the prosecution had proved the charge, applied the appropriate test as articulated by Walsh J in Hemsley v McLean, unreported; SCt of WA; Library No 950156; 22 September 1995, in which his Honour noted that the proper question for a court on a charge of that nature was whether the defendant through some fault of his or her own, be it mere inadvertence, carelessness or deliberate act, caused a situation where there was a real potential danger of injury to persons who might reasonably have expected to proceed along the road.

9 In light of the evidence which had been given before him, the learned Magistrate, as I apprehend his remarks, accepted and made findings to the effect that the appellant was driving down the left hand side of Bernard Road from Brookton Highway when the 15-year-old complainant, Master Carniel, was initially walking ahead of him on the same side of the road but subsequently crossed to the other side of the road, that is to say to the right-hand side of the road.

10 His Worship accepted evidence not only of the complainant and his mother but in particular two independent witnesses to the effect that the appellant's vehicle accelerated and as Master Carniel was either on or almost to the right side of the road, veered over to that side, which was to say veered over to his wrong side of the road, and drove past Master Carniel at a distance of only about one metre and in that way narrowly avoided contact or near contact, as the learned Magistrate put it, with Master Carniel.

11 The learned Magistrate took into account the evidence given by the appellant which apparently was to the effect that he was simply driving down the middle of the road but was of the view, considered in light of the evidence of the other witnesses whose testimony he did accept, the appellant's evidence had no credibility. His Worship's conclusion was that the driving as he found it to be clearly amounted to dangerous driving, applying the test to which I have referred, and that it "frankly could have been more serious than that".

12 Having reached that conclusion and found the charge to be proved the learned Magistrate heard from the prosecutor who said simply that there were costs of $175.70 and there was a record, that is to say a record of the appellant. There was then the following exchange at AB 12:

"HIS WORSHIP: Yes. Stand up, please, Mr Warren. What are your personal circumstances these days? Are you working?---Yes, sir. I am. And I work for an organisation for which I drive a company vehicle and have absolute necessity to drive that on a day-to-day basis. Much of my work is out on the road.

Yes. On my finding, Mr Warren, I mean this was judgment of the poorest nature - I proceed on the basis of my finding - and really it was fraught with risk and something which really does you no credit. I take into account there is nothing of a similar nature in the record.

In relation to the matter the maximum fine is $800 available to me. In my view this is certainly at the higher end of the scheme for these matters. There is a fine of $600, costs of $175. In my view the nature of the dangerous driving put Master Carniel's welfare at risk. I understand your position in relation to your licence and need for a licence but in my view this is a case that calls out for disqualification. There is 6 months' disqualification of licence."

13 I come now to the grounds of appeal and the principles which are to be applied on an appeal of this nature. Those principles are well-established and there is no contention about them on this appeal.

14 It is to be accepted that an appellate court will not interfere with a sentence or penalty imposed merely because that court is of the view that it would have imposed a different penalty, whether more or less severe; see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] and R v Tait (1979) 46 FLR 386 at 388.

15 What must be demonstrated is that the sentencing court was in error in acting on a wrong principle or on the basis of some extraneous or irrelevant matter or failed to take into account some material consideration, took into account an irrelevant consideration or made a mistake as to the facts or law.

16 Alternatively, although no identifiable error may be attributable, an appeal court may still reach a conclusion that the sentencing discretion miscarried if upon the facts the sentence imposed was patently unreasonable or unjust so as to indicate that although not identifiable, there must have been an error such as to cause a miscarriage of the sentencing discretion (see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], [21], [58] and [59].

17 The disqualification in the present case was imposed by his Worship under s 105(1) of the Sentencing Act 1995 (WA) ("the Sentencing Act") which enables a court sentencing an offender for a motor vehicle offence to order that the offender be disqualified from holding or obtaining a driver's licence. Such disqualification may be imposed in addition to any other penalty and it does not affect the right or duty of a court under the RTA to disqualify a person from holding or obtaining a licence.

18 The power to impose a licence disqualification under s 105 of the Sentencing Act replaced the power previously granted under s 74 of the RTA which has been repealed. As has been submitted to me by Ms Pritchard for the respondent, s 105 of the Sentencing Act gives the sentencing court a wide discretion and there is no upper limit to the period of disqualification which may be imposed. However, like its predecessor, s 105 recognises the need to use the sanction of licence disqualification as a means of controlling users of the road who show a disregard for the law and the safety of the community at large.

19 Speaking of s 74 of the RTA, Burt CJ in Logan v Weary [1984] WAR 41 said at 42:

"It gives a general power to disqualify in a case where an offence has been committed of which the driving or using of a motor vehicle is an element. It is a jurisdiction which seems to hover over the whole of the Traffic Act and over all the other laws of this State, but when one is dealing with a particular offence committed under the Traffic Act which has no particular circumstance of aggravation about it, I think it may be a wise counsel if people were to be punished in accordance with the punishment indicated in the Act as being directly referable to the offence which they have committed. In other words, I am saying that the jurisdiction conferred by s 74 should not be exercised, so to speak, as of course. I think you must be looking for some particular circumstance in the case being dealt with to justify the use of a s 74 disqualification power."

20 That observation of the Chief Justice was followed and applied by Olney J in Svenson v Cooper (1986) 4 MVR 150. Having referred to what the Chief Justice said, Olney J went on to say (at 152):

"I do not think that Logan v Weary can be taken to be authority for a proposition that unless the section creating the offence provides for some degree of disqualification, then s 74 should not be used. Indeed, I think s 74 has a very real place in the Road Traffic Act and recognises the need to use the sanction of licence disqualification as a means of controlling users of the road who show a disregard for the law and the safety of the community at large."

21 His Honour went on to say that s 74 can be regarded:

"... as a source of power to be exercised in special circumstances. The occasion for the exercise of that power would, in my view, be the occasion when the particular offence justifies some extraordinary or additional penalty being imposed."

22 As McKechnie J said in Forbes v Durant [1999] WASCA 85 at [18], a period of disqualification also serves a number of other purposes including general deterrence, particular deterrence and punishment.

23 All of those propositions as to the purpose and application of s 74 RTA and consequently s 105 of the Sentencing Act do, I think with respect, reflect the law.

24 When considering the grounds of appeal in the instant case it is necessary to do so specifically upon the basis of the findings made by the learned Magistrate and the evidence which was before him and accepted by him.

25 There is no suggestion by the appellant that a fine should not have been imposed at all. It seems to me rather that the basis of his appeal is that the fine should have been less than $600 and that in any event a period of licence disqualification ought not to have been imposed at all.

26 Against that background it is apparent that some of the matters sought to be relied upon by the appellant cannot go to support his appeal because they are in conflict with findings made by his Worship which are not challenged.

27 So far as the first particular is concerned, namely, that the learned Magistrate failed properly to consider the maximum sentence for the offence, it is apparent that cannot be sustained. His Worship expressly adverted to the maximum fine being $800 and accordingly clearly had regard to that. Not only did he have regard to it but he took the view, expressly, that the facts of the offence with which he was dealing put it at the higher end of the scale of offences of that kind. I note that the fine imposed of $600 is three quarters of the maximum fine which plainly reflects his Worship's assessment of the gravity of the particular offence in the context of the maximum fine which could have been imposed for it. The first particular to the ground accordingly cannot be sustained.

28 The second is that the standards of sentencing customarily observed for offences of this nature were not properly considered by his Worship. As to that the respondent relies upon what was said by McKechnie J in Plenty v Bargain [1999] WASCA 67 as to the approach to be taken by an appellate court in considering an appeal against the exercise of a sentencing discretion and particularly from a Court of Petty Sessions. His Honour noted at [81]:

"Care should be particularly be (sic) exercised when interfering with the discretion of a court such as a court of petty sessions which regularly hears complaints of similar offences and is often in a better position to judge the various factors and to have regard to the range of sentences most commonly imposed."

29 Again, with respect, I accept that observation and agree with it. Traffic matters are dealt with by Courts of Petty Sessions daily. They very rarely come before this court even by way of appeal. The learned Magistrate is to be taken as having a sound awareness of the standards of sentencing customarily observed for offences of this kind and offences comparable to that.

30 In any event, it has not been demonstrated to me that the fine and disqualification here imposed by his Worship is in any way outside the standard of sentencing customarily imposed for offences of this nature.

31 Particular (c) of ground 1, which refers to the place which the offence in question occupies in the scale of seriousness of offences of this nature, is really to be dealt with, I think, in the same way. The facts found by his Worship, as I have observed, were in substance that the appellant's vehicle veered from the left hand side of the road to his incorrect side of the road to so come within a short distance of the complainant, Matthew Carniel, who was walking either on or adjacent to the edge, as I understand it, of the road. His sentencing remarks make it clear that the learned Magistrate considered that the complainant was lucky not to have been struck by the appellant's vehicle. Accordingly, the risk of serious injury to the complainant from the manner in which the appellant drove his car was a significant risk, and it was certainly open to his Worship to make that finding.

32 The evidence of the appellant, as noted by his Worship, was that when he saw Carniel cross the road, he decided not to apply the brakes to his vehicle but to simply take his foot off the accelerator, notwithstanding that, passing within approximately one metre of Carniel. His Worship noted that the appellant thought that was appropriate driving in the circumstances.

33 Ms Pritchard points out that, according to what appears from the appellant's affidavit of 4 February 2004, the appellant is still of that view. That appears from par 7. The reason it is apposite to note this, it seems to me, is that it reinforces the appreciation of the learned Magistrate that the appellant appeared not to appreciate the danger or the risk which was inherent in his manner of driving on that occasion, and in that respect a penalty directed not only to general deterrence but to personal deterrence was appropriate. I accept that submission.

34 That goes also then to the imposition of the period of disqualification because that is said to be the additional feature which is of a kind required by the authorities to warrant the imposition of a period of disqualification under s 105 of the Sentencing Act.

35 As it is put on behalf of the respondent, the appellant's deliberate and unwarranted decision to veer to the wrong side of the road near to a young person walking on that side of the road and his conscious decision not to apply his brakes, notwithstanding that he passed within one metre of that pedestrian, were circumstances particular to this case which warranted the imposition of a period of disqualification. That does appear to have been the view taken by his Worship and it seems to me it is not possible to say he erred in reaching that conclusion.

36 Particular (d) of the ground refers to the appellant's age and antecedents. The learned Magistrate had of course just heard a contested trial in the course of which the appellant had himself given evidence. He also had before him a copy of the appellant's record. In the circumstances it seems to me there is nothing in this particular.

37 That brings me to particular (e) which asserts that the learned Magistrate erred in not affording the appellant any opportunity to make any comments in mitigation prior to sentencing. There is no doubt that as a matter of natural justice a person convicted of an offence is entitled to the opportunity to put before the sentencing court any relevant matters in mitigation. The denial of that opportunity will accordingly be a denial of natural justice and would ordinarily require the quashing of any penalty or sentence so imposed. The authorities I think establish this beyond doubt. They include Re Teece; Ex parte Kelly [1966] 2 NSWR 674, particularly at 678 and 679; Re Callaghan and Anor; Ex parte Kent (1969) 2 NSWR 184; G v Bourne (1991) 105 FLR 52 and Papadopolous v Hunter (1995) 85 A Crim R 572.

38 It is apparent from the transcript that at the conclusion of his reasons for conviction the learned Magistrate simply asked the appellant what were his personal circumstances and whether he was working. The appellant gave a very brief response to that, indicating that he works for an organisation for which he drives a company vehicle and has an absolute necessity to drive on a day to day basis because much of his work is out on the road. At that point his Worship simply proceeded, without more, to impose sentence.

39 I think the appellant's complaint that he was not given an opportunity to say anything further in mitigation is clearly made out. It is not necessary for there to be an express denial or refusal to hear an offender in mitigation. The denial can result simply from a failure to give the opportunity. In the circumstances I am satisfied that the manner in which the learned Magistrate dealt with the appellant at that point was such as not to afford him the opportunity to say anything further he might have wished to say.

40 It follows from this that this particular or ground has been made out. Ms Pritchard, however, submits that the appeal should nonetheless not be allowed because there has been no substantial miscarriage of justice. This submission is based on s 199 of the Justices Act 1902 (WA) which relevantly for present purposes provides:

"(1) Upon the hearing of an appeal, the court may do one or more of the following:

(b) dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant if it considers that no substantial miscarriage of justice has occurred."

41 So the question becomes whether or not the failure of the learned Magistrate to afford the appellant an opportunity to put further matters in mitigation has been shown not to have resulted in a substantial miscarriage of justice.

42 The matters which the appellant says he would have brought up in mitigation are set out in his affidavit to which I have already referred.

43 The first goes to his need for a licence because of his role as the state director of The Leprosy Mission and the nature of his employment in that regard. The second is that he has no traffic record, apart from some speeding infringement over the years, so that this was to all intents and purposes a first offence.

44 In addition, when asked by me today what further matters, if any, he would have wished to raise before the learned Magistrate, the appellant replied that he was not exactly sure what he would have said because he was caught off guard but he would have wanted to say to the learned Magistrate that he is a man of good character, married, with a family, that he is a responsible person who would not be given to disregard the law, that he has been driving for more than 30 years with only a few minor traffic offences, and that maybe he would have called character references or witnesses, and he reiterated that he would want to have said more about his need for a driver's licence to perform his work for The Leprosy Mission.

45 The point about the appellant's need for a licence was in fact made by him to the learned Magistrate and the importance of it to him was clearly understood by his Worship, who expressly referred to it, albeit briefly, when he said that he understood the appellant's position in relation to his licence and his need for it but that in his view it was a case which, as he put it, called out for disqualification.

46 Likewise the appellant's record was in fact before his Worship and it would have been apparent from that that the appellant had been driving for many years and that there had not been many relevant traffic offences committed. The record indicates a conviction for dangerous driving in July 1973, driving without a licence in 1975, speeding at 80 kilometres per hour in a 60 kilometre zone in July 1982, a speeding offence in November 1987, and there are three other offences shown which are serious offences of a sexual nature but which would not bear directly upon the sentencing exercise in relation to offences under the RTA, subject to the observations I am about to make, so there would have been nothing further that could have been put before his Worship in relation to the appellant's driving history than what was already before him and taken into account by him.

47 The appellant says that he would have wanted to call evidence of good character. There are a number of aspects about that. First of all, although the appellant might well have been, and I assume is, in a position to have told the learned Magistrate that he is a man of good character in the sense that he is married, with a family and family responsibilities, and of good reputation, there would then be the need for his Worship to have placed into the balance against that the sexual offences to which I have referred which, although dating back to 1989, clearly would counterbalance, to use a neutral expression, the matter of any assertion of general good character of the nature referred to.

48 As I mentioned a moment ago, the existence of prior convictions of that kind would ordinarily not figure at all in the imposition of a sentence or penalty for conviction of offences under the RTA because they are quite dissimilar and have in that sense no logical relation to them, but offences of that kind would bear upon a claim by an offender that he is a person of good character in a general sense.

49 More significant, however, it seems to me, is the fact that matters of good character are not matters able to be given great weight in relation to offences under the RTA which involve danger to the public and are not infrequently committed by persons of otherwise impeccable character. Road safety - that is to say, the safety of all members of the community who use or may be upon the road - is ordinarily the paramount sentencing consideration when dealing with offences under the road traffic legislation. That in turn will mean that principles of general and personal deterrence will usually predominate.

50 In these circumstances and in this context it seems to me that, even had the appellant been afforded the opportunity to put before his Worship evidence of general good character in that way, that is not something which would or could have caused his Worship to come to any different sentencing disposition.

51 Under the circumstances, although the appellant was denied in the sense that he was not given the opportunity to put mitigating matters before the learned magistrate, none of those matters he now says he wished to advance could have led to any different result. That being so, the respondent has satisfied me that there was no substantial miscarriage of justice and, on that basis, the appeal will be dismissed.

Warren v Van Den Berg [2004] WASCA 32

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Warren v Van Den Berg [2004] WASCA 32 (19 February 2004)

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