Appeal - Driving offence - Fifth conviction for driving under suspension - Sentence of imprisonment - Whether sentence of 9 months' imprisonment excessive in the circumstances - Turns on own facts

Road Traffic Act 1974

Appeal succeeds to extent that the term of imprisonment is reduced from 9 months to 6 months

Bacich v Illich [2000] WASCA 133

Dinsdale v R [2000] HCA 54; (2000) 175 ALR 315

Eldridge v Bates (1989) 51 SASR 532

Griekspoor v Scott [2000] WASCA 419

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

Lowndes v R [1999] HCA 29; (1999) 195 CLR 665

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999

Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150

R v Tait (1979) 46 FLR 386

Reynolds v Wilkinson (1948) 51 WALR 17

Veen v R [1988] HCA 14; (1988) 164 CLR 465

1 WHITE AUJ: This is an appeal against a sentence of 9 months imprisonment imposed upon the appellant in the Court of Petty Sessions on 19 January 2001, following the appellant's conviction on a charge of contravening s 49(1)(a) and s 49(2) of the Road Traffic Act 1974 ("the Act") in driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence. For that offence, there was an order that his licence be disqualified for 30 months cumulative upon any previous disqualification.

2 He was at the same time convicted of an offence of contravening s 53(1)(a) of the Act in that, being the driver of a vehicle and when required by a member of the Police Force to state his name and place of abode, gave a false name and address. For that offence, the appellant was fined $300.00 and his licence was disqualified for six months, concurrently with the disqualification in relation to the former charge.

3 The appeal is directed only to the length of the term of imprisonment.

4 The appellant was born on 2 April 1969 and he has a number of previous convictions for various offences, including prior convictions for driving while his licence was under suspension.

5 The learned Magistrate found that the appellant had four prior convictions for driving a vehicle at a time when is driver's licence was suspended. The appellant's criminal record, which was handed up to me, reflects the following relevant offences:

"25/10/1989 Driving under influence - MDL cancelled and disqualified 6 months

25/01/1990 No Motor Drivers Licence

7/12/1990 No Motor Drivers Licence

20/12/1990 Driving under influence - MDL cancelled and disqualified 28 months

16/09/1992 No Motor Drivers Licence

17/01/1997 No Motor Drivers Licence

19/07/1999 No Motor Drivers Licence - 4 mths imp susp.MDL disq. 18 mths

19/07/1999 No Motor Drivers Licence - 6 mths imp susp.MDL disq. 18 mths

05/04/2000 No Motor Drivers Licence - 6 mths imp MDL disq. 2 yrs cum

19/01/2001 No Motor Drivers Licence - 9 mths imp MDL disq. 30 mths cum"

6 Accordingly, his Worship's finding that the conviction before him was the appellant's fifth conviction for the offence of driving while his driver's licence was suspended may have been in error - an error favouring the appellant. However, this was not argued before me and I shall assume that his Worship was correct in his assessment.

The circumstances of the commission of the offence

7 The Statement of Material Facts read to the learned Magistrate was as follows:

"At about 12:10 pm on Saturday the 2nd of December 2000, the defendant drove Ford Fairlane bearing registration plate of ITBS755 east on Guildford Road, Guildford.

Police stopped the defendant to make enquiries regarding the number plate being affixed to the vehicle, registration plate is one which is normally issued to a trailer. Upon being required by a member of the WA Police to supply his name and place of abode, the defendant gave the name of David James WILLIAMS (20/10/1972) of 21 Flinders Street, Yokine. Enquiries proved these details were false.

Further enquiries revealed the defendant's MDL had been suspended on 05/04/2000 at the Joondalup Court for driving while under suspension.

The defendant was arrested.

Number plate seized from vehicle."

8 Counsel appearing for the appellant at the hearing before the learned Magistrate (not the counsel who appeared on the appeal) informed his Worship that the day of the offence was the day of "these motorcycle toy-runs" which he understood started from the Midland Gate Shopping Centre. He said that the accused had been in the car with his girlfriend, who was driving. They were on the Guildford Bridge when they were suddenly surrounded by the motorcycles. The girlfriend was not a very good driver - very inexperienced - and she panicked, immediately stopped the car and did not feel safe to continue. The appellant then drove the vehicle with the intention of driving to the Guildford train station, two or three hundred metres further on from the Guildford Bridge to wait there until all the motorcycles had passed and the girlfriend could continue driving. Counsel said that the appellant did not want to leave the car on the bridge where it would be an obvious obstruction to traffic, however the girlfriend felt she could not continue to drive as she was afraid she might veer and hit someone. He said that the appellant is 32 years old and was currently undergoing various small business management courses with an employment project officer through Centrelink. He has some certificates already and the intention would be to start his own business at some point..

9 In his affidavit sworn on 1 June 2001 in support of his application for leave to appeal, the appellant says, in par 5:

"The duty lawyer gave a plea in mitigation on my behalf. I do not believe that he conveyed to the court that there were a very large and dense number of motorcycles passing us on the Guildford Bridge. Some of those motor cycles were veering sharply to avoid us and some of the affected motorcyclists were verbally abusive to us. It was in the context of safety concerns for the motorcyclists and their child passengers and the panic of my girlfriend, that I immediately decided that I had no alternative but to drive."

10 Mr McKenzie, of counsel for the appellant on the appeal, conceded that the ordinary punishment for driving under suspension is a sentence of imprisonment. He referred to the judgment of Murray J in Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994. In that case, his Honour was dealing with an appeal against a sentence of 12 months imprisonment imposed upon the appellant in that case following his plea of guilty to a charge that he drove a vehicle without being the holder of the appropriate valid driver's licence for that vehicle, contrary to the provisions of s 49(1)(a) of the Act. His Honour referred to the specific complaints of the appellant, namely that the learned Magistrate's discretion had miscarried in the imposition of the sentence because he failed properly to consider the seriousness and magnitude of the offence, the fact that the appellant pleaded guilty on his first appearance in court in connection with the charge and his antecedents and personal circumstances, including the facts that he was employed and supporting his de facto wife and their child and he was in a position to pay a fine.

11 The appellant in that case, too, had just sustained his fifth conviction for the offence in question. It appeared that his circumstances had, since his last conviction had improved, he was in steady employment and a stable relationship with his de facto wife and their child.

"The live question, it seems to me, is whether the sentence imposed was manifestly too severe in all the circumstances of the case. I do not think that it demonstrated that the learned Magistrate failed to give proper consideration to the various matters about which complaint has been made in general terms, but the question is whether that consideration, together with the reference to the previous convictions, has resulted in an appropriately proportionate penalty.

... the court will have regard to the purpose of the driving and whether it was associated with the commission of other offences, or whether indeed there may be some mitigatory aspect to that such as the need, short of a defence of extraordinary emergency, of a relatively compelling nature to drive in a situation of extremity. The nature of the driving itself will, I think, be relevant because it may provide a particular illustration of the point that the offender has lost the privilege to drive by reason of the incapacity to obey the traffic laws. The duration of the driving will certainly be relevant. The time when the suspension or disqualification was imposed, how recent it was, what its duration is, will be matters of relevance."

"It was not in my opinion, the case that the learned Magistrate erred by concluding that he could not give the appellant that chance to the extent of imposing a fine but I am satisfied that the learned Magistrate imposed a term of imprisonment which was too great and in that area the exercise of sentencing discretion miscarried. A relatively short period of imprisonment would be adequate, in my opinion, to demonstrate the seriousness with which the court properly regarded the offence but at the same time not to overreact to its gravity. In my view, in the circumstances of this case, a sentence of the order of 2 or 3 months imprisonment would have been perfectly adequate and no more than a penalty of about that length was justifiable."

14 In the result, his Honour set aside the sentence of 12 months imprisonment and in lieu thereof imposed a sentence of 2 months imprisonment, having had regard to the time during which the appellant had been in custody serving his sentence.

15 Mr McKenzie submitted that the appellant's reason for driving being safety concerns for road users and the fact that he committed no other offence in association with the driving were mitigatory matters that the learned Magistrate was obliged to consider in determining the gravity of the offence. Counsel pointed to the circumstances that the girlfriend panicked and stopped the car in the middle of the Guildford Bridge. He submitted that the duration of the driving was short - only a matter of 200 to 300 metres - and that the learned Magistrate would have been entitled to form the view that the circumstances, just short of a genuine emergency, constituted extenuating circumstances and a compelling reason for driving. Accordingly, he submitted, the learned Magistrate would have been entitled to conclude that the gravity of the offence was low.

16 He submitted that the learned Magistrate erred in sentencing the appellant to 9 months' imprisonment by placing undue weight upon his record of previous conviction which term is not in proportion to the gravity of the offence. Taking into account all the circumstances and the standards of sentencing customarily observed, the learned Magistrate would have been entitled to impose a term of, or marginally above, the minimum penalty of 3 months' imprisonment. Counsel referred to the decisions in Fernando v Keady (supra), Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998; Dickman v Turton [2000] WASCA 1 and Stewart v Waghorn [1999] WASCA 150.

17 In Krakouer v Durka, Miller J was dealing with an appeal against a sentence of 4 months' imprisonment imposed for a fifth conviction for driving under suspension, as well as an appeal against a sentence for escaping legal custody which latter appeal is not germane to the matter now before me. His Honour dismissed the appeal against the sentence of 4 months imprisoment, saying that upon the facts it could not be said that the sentence was unreasonable or plainly unjust. In that case, the appellant had never been in prison before, was responsible for the custody of his two children and a respected member of the Mt Barker community.

18 In Stewart v Waghorn, Miller J dealt with an appeal against a sentence of 15 months' imprisonment imposed for a sixth offence of driving under suspension. The appellant in that case had previously, in respect of his fifth conviction for driving while under suspension, been sentenced to 12 months' imprisonment, suspended for 2 years. The appellant had, after that conviction, been diagnosed as suffering from Attention Deficit Hyperactivity Disorder. Miller J held that an appropriate sentence would have been one of 6 months' imprisonment and, because of the appellant's medical condition, diagnosed after the previous suspended sentences had been imposed, his Honour directed that the sentence of 6 months which he substituted for the 15 months ordered by the learned Magistrate, would be suspended for 12 months.

19 In Dragic v Burroughs [2000] WASCA 385, the appeal was against a sentence of 14 months' imprisonment imposed upon a third conviction for driving under suspension. Roberts-Smith J expressed the view that the normal range of sentences for offences of the kind in question was 2 to 6 months' imprisonment. His Honour set aside the sentence of 14 months' imprisonment and, having taken 6 months' imprisonment as an appropriate starting point, reduced that to 4 months after making allowance for the plea of guilty and other factors personal to the appellant.

20 In Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999, Miller J dealt with an appeal against a sentence of 4 months' imprisonment on a third conviction for driving under suspension and dismissed the appeal.

21 In Jennings v Carson & Anor, unreported; SCt of WA; Library No 980608; 21 October 1998, Miller J allowed an appeal against a sentence of 18 months imprisonment imposed on a count of driving while under suspension, substituting for it a sentence of 4 months' imprisonment. His Honour allowed an appeal against a sentence of 10 months' imprisonment for a second count of driving while under suspension, substituting for it a sentence of 6 months' imprisonment, concurrent with the sentence on the first count. These offences represented the third and fourth convictions of the appellant for the offence, as an adult.

22 In Marshall v Spent [2000] WASCA 114, Miller J held, in dismissing an appeal against sentence, that a sentence of 4 months' imprisonment was entirely within the range which it was appropriate for the learned Magistrate to impose. In that case, the appellant had a previous conviction for the same offence.

23 Ms Diaz, of counsel for the respondent, submitted that:

"4. An appeal against the exercise of sentencing discretion should be determined by the following established principles:

(a) Substantial grounds, beyond the dissatisfaction of an aggrieved party, must be advanced to justify an appellate court reviewing sentences.

Reynolds v Wilkinson (1948) 51 WALR 17 at 19; White v Lambrecht, unreported SCt of WA; Library No 8691; 29 January 1991 at 11.

(b) An appellate court should not interfere with a sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It should interfere only if it can be shown that the sentencing judge was in error acting on a wrong principle or a misunderstanding or in wrongly assessing some salient feature of the evidence. The reasons of an appellate court must clearly find and identify error.

Dinsdale v R [2000] HCA 54; (2000) 175 ALR 315 at 317 per Gleeson CJ and Hayne J; at 328-329; 330 per Kirby J (with whom Gaudron and Gummow JJ agreed); Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671-2; R v Tait (1979) 46 FLR 386 at 388; House v The King [1936] HCA 40; (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504-505.

5. Pursuant to s 49(2)(a) of the Act (operative at the time of the offence), the appellant was liable to a fine of not less than $500 or more than $2,000, or imprisonment for a term not exceeding 18 months, or both the fine and imprisonment.

6. A sentence must be commensurate with the seriousness of the offence, which is to be determined by taking into account:

(a) the statutory penalty for the offence;

(b) the circumstance of the commission of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

Sentencing Act 1995 (WA) ss6 (1),(2).

7. The offence of driving whilst disqualified is a serious offence which ordinarily warrants the imposition of a term of imprisonment, particularly when the offence is a subsequent offence. It will be very difficult to dispose of the matter otherwise than by a term of imprisonment, when the offence is the fifth offence.

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 at 13-17; Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999 at 9; Stewart v Waghorn [1999] WASCA 150 at [18]; Dragic v Burrows [2000] WASCA 385 at [34]; Marshall v Spent [2000] WASCA 114 at [7]- [9]; Griekspoor v Scott [2000] WASCA 419; Bacich v Illich [2000] WASCA 133 at [10]- [12]; Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150;"

24 I accept the respondent's submissions as to the relevant principles applicable to the exercise of a sentencing discretion, which I did not understand to be disputed by counsel for the appellant.

25 In relation to the submission set out in par 4(b) above, I respectfully adopt the remarks of Anderson J in White v Lambrecht, unreported; SCt of WA; Library No 8691; 29 January 1991, where his Honour said at 13:

"I do not think it is necessary for an appellate court to put its finger on any particular error of principle or fallacy of reasoning: Okutgen (1982) 8 A Crim R 262, 265. It is enough I think if without good reason the sentence substantially exceeds what is the upper limit of sentences consistently imposed upon an offender such as the appellant for an offence such as he has committed. In such a case, especially where the offence is simple and relatively common, it may be inferred that there has been some error on the part of the sentencing authority."

26 I do not think that the circumstances attaching to the commission of the offence by the appellant can properly be regarded as at the top of the range of offences of this kind. In fact, the circumstances were not remarkable. In my respectful opinion, the learned Magistrate was right in concluding that it was appropriate to sentence the appellant to a term of imprisonment, but there was nothing in the circumstances to indicate that a sentence outside the normal range of sentences commonly imposed for the offence in question was called for. The learned Magistrate correctly regarded the fact that this was the fifth conviction for the same offence as a factor of importance in determining an appropriate sentence, but I am of the opinion that a sentence of 9 months imprisonment was manifestly excessive in all the circumstances.

27 Accordingly, I direct that the sentence of 9 months' imprisonment imposed on the appellant be set aside and, in lieu thereof, a sentence of 6 months' imprisonment be imposed, to take effect from 19 January 2001. The periods of disqualification of the appellant's driving licence imposed by the learned Magistrate are to remain in force.