WILSON -v- PYMM [2015] WASC 449 (24 November 2015)

(b) failing to give information when requested by the police to do so, contrary to s 58(1) of the RTA.

5 On 2 July 2015 the appellant filed an appeal notice in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) in respect of the sentence of immediate imprisonment.

6 On 8 July 2015 the appellant was granted bail pending the determination of his appeal.

8 At or about 9.50 pm on Friday, 21 February 2014, the appellant drove a Ford Ranger motor vehicle in a southerly direction on Railway Avenue in Kelmscott. As the vehicle approached the intersection of Westfield Road it failed to negotiate the roundabout, resulting in the vehicle colliding with a tree. A preliminary breath test was conducted on the appellant and it was ascertained that he had consumed alcohol. He denied being the driver of the vehicle at the time, saying that he was only a passenger. In fact, the appellant was the only person in the vehicle at the time of the collision.

9 The appellant was conveyed to the Armadale Police Station, where he underwent a breath test and gave a reading of .225, which was calculated to .213 at the time of driving.

10 The appellant held an extra-ordinary driver's licence at the time. That licence was subject to conditions that permitted the appellant to drive from his home to his employment and in the course of his employment, on Monday to Saturday inclusive, between the hours of 6.00 am and 8.00 pm. Thus, at the time of the accident, the appellant was in breach of the conditions of his extraordinary driver's licence. The appellant admitted the facts as stated by the prosecutor.

11 In mitigation the appellant's counsel made the following submissions in relation to the appellant's personal circumstances:

(b) The appellant lived in Kelmscott and had lived in Australia for his entire life.

(c) The appellant completed year 10 at high school in Victoria.

(d) The appellant was single but had a daughter who was 20 years old.

(e) The appellant had worked in various trades, first as a stonemason, then a gyprocker, and thereafter a glazier.

(f) At the age of 34 the appellant fell out of a tree whilst intoxicated and suffered multiple fractures of his vertebrae, which resulted in a prolonged period of hospitalisation and rehabilitation. He was unable to return to his previous trades and retrained as an air conditioning installer. At the time of sentencing the appellant was self-employed as a sole trader installing air conditioning.

(h) The appellant was attending a clinical psychologist.

(i) The appellant had consulted his general practitioner in relation to taking steps to control his alcoholism and deal with the 'underlying issues'.

(j) The appellant was attending Alcoholics Anonymous.

In reverse chronological order, the appellant's criminal history is as follows:

Failing to provide sample of breath: RTA, s 67(2)(a)

Driving contrary to conditions of extra-ordinary licence: RTA, s 77(1)

Without lawful excuse trespassed on a place: Criminal Code (WA), s 70A(2)

Without lawful excuse trespassed on a place: Criminal Code (WA), s 70A(2)

Exceed speed limit by between 10 and 19 km/h: Road Traffic Code, r 11(3)

No motor driver's licence - under suspension: RTA, s 49(1) and (2)(a)(iii)

No motor driver's licence - under suspension: RTA, s 49(1)(a) and (2)(a)

No motor driver's licence - under suspension: RTA, s 49(1)(a) and 2(a)

No motor driver's licence - under suspension: RTA, s 49(1)(a) and (2)(a)

No motor driver's licence - under suspension: RTA, s 49(1)(a) and (2)(a)

(a) s 63(3) of the RTA, which provides, in effect, that a conviction of an offence against s 67 of the RTA shall be deemed to be an offence against s 63(1) for the purpose of determining whether the offence is a first, second, third or subsequent offence; and,

(b) s 107 of the Road Traffic (Administration) Act 2008 (WA), which provides that for the purposes of determining the penalty for an offence contrary to any section of the RTA, any previous offence the conviction of which was recorded more than 20 years before the commission of the present offence is not to be taken into account

the appellant is to be taken as having three prior convictions for driving under the influence of alcohol contrary to s 63 of the RTA.

13 A pre-sentence report was provided to the magistrate. The report was dated 2 June 2015 and reflects, in part, what was said by the appellant when interviewed. The interview was conducted in the period between his appearance in court on 14 May 2015 and 2 June 2015. The report refers to difficulties which the appellant faced in his childhood, in particular to abuse and trauma suffered by him at the hands of his father as a result of his father's excessive alcohol use. The report discussed in some detail the appellant's level of insight into his problems with alcohol and recorded:

Mr Wilson admitted that his alcohol use was a contributing factor in some of his offending behaviour. He appeared to minimise the extent and effect of his drinking habits by stating that he does not drink alcohol every day and at various times has reduced the quantity of his intake. However, these attempts have been short lived and he does not have any strategies in place by which to avoid relapse.

14 The report considered the risk of the appellant re-offending and identified the factors which were relevant to that risk as including the appellant's alcohol use, history of family dysfunction and pro-criminal proclivity. The report continued as follows:

Despite his claim that he held a regard for the law, his discussion during interview and his Court History indicate otherwise. Mr Wilson presented with an attitude and lifestyle supportive of crime which is evidenced by his Court history which shows that he continues to drive whilst knowingly being disentitled to do so with little regard for the legal consequences. He posed a significant level of risk to the community by driving under the influence of alcohol. ...

During interview, Mr Wilson informed that as he is subject to a life cancellation of his Driver's Licence he has plans to employ a driver. This would enable him to attend work sites, an idea which might seemingly, reduce his risk of re-offence. However, when Mr Wilson had a similar strategy in place previously, which included offers of transport from family and friends, he continued to drive a vehicle without a licence.

15 The report referred to the (prospective) possibility that the appellant might benefit from participating in substance abuse counselling at Holyoake. The section of the report dealing with the risk of re-offending concluded with the following sentence:

Given the afore-mentioned factors, it has been assessed that there is a high likelihood that Mr Wilson might continue to re-offend in a like manner.

16 In the Recommendation section of the report the author recorded the following:

It is of concern that Mr Wilson has demonstrated a pattern of offending which is in a similar vein to the current charges. During interview, Mr Wilson appeared to accept limited responsibility for committing the current offences. His focus was on the consequences for him in the event of imprisonment, being the possible loss of his business or at least a decrease in the number of contracts, the financial burden for his business partner and his daughter's disappointment in him.

17 The magistrate's sentencing remarks were as follows.

You have pleaded guilty to three offences, the most serious of which is driving under the influence of alcohol. Back on 21 February after you made arrangements to organise a driver and you went out drinking, you decided not to go through with those arrangements and chose to drive. You were involved in a collision. Nobody was injured and you were found to have had a blood alcohol reading which, for sentencing purposes, is 0.213, an extremely high reading.

You have in the past engaged in similar alcoholrelated driving conduct. In January 2012 there was an offence of failing to provide a sample of breath and back in September 2002 there was a similar offence. There are other offences in the last 20 years, alcohol-related driving offences. It is impossible not to escape the conclusion, Mr Wilson, that you are an alcoholic but the significance for me is that you drive and have continued to drive over that long period. There is much to be said for what Mr Blyth has drawn my attention to.

You are someone who is otherwise of good character. You have come back from a serious injury to have a good career working-wise. You employ people. You have maintained contact with your daughter with whom you have a good relationship. You have employees who are dependent upon you. You have, perhaps belatedly, but you have since this incident recognised that you should take steps to address your problem with alcohol. You have been attending Alcoholics Anonymous.

There is an underlying issue, as there often is, where you yourself - a close member of your family was an alcoholic and you suffered because of that and you are seeing a psychologist and getting some treatment for that and I do give that appropriate weight. I also must give weight to the seriousness of this offence. The reading speaks for itself. It was a disaster waiting to happen and it is something which has happened before.

I will just get you to stand up, Mr Wilson. When I weigh all of that, the protection of the community, the seriousness of the offence means that imprisonment is, on my assessment warranted. I have reduced what I would otherwise have imposed by 20 per cent to take into account that plea. I have determined that a period of eight months imprisonment reflects all of those considerations. I need to look back on all of the matters that I have referred to to decide whether or not to suspend that: the aspects of character which I have referred to, the fact that you are getting treatment for alcohol and there are some underlying issues.

Notwithstanding all of those matters I do not think it is appropriate to suspend this term of imprisonment. Protection of the community means that you need to get this message and other people do, Mr Wilson, that this term will be served immediately. For the driving under the influence there will be eight months imprisonment. Your licence is disqualified permanently. For each of the other offences there will be fines. There will be $400 for each of those and the extraordinary driver's licence is cancelled. That deals with it, Mr Wilson. Thank you.

18 At the hearing the appellant applied for leave to amend the grounds of appeal by the addition of one ground. I granted leave to amend and in their amended form the grounds of appeal read as follows:

1. The learned sentencing magistrate erred at law in ordering that the sentence of imprisonment imposed be served immediately, when in all the circumstances, it was appropriate to suspend the term.
2. The learned sentencing magistrate erred in failing to suspend the term of imprisonment.

1. His Honour determined imprisonment was the appropriate disposition of the matter;
2. His Honour found that the Appellant was 'otherwise of good character';

1. His Honour briefly took into account some mitigatory factors;

1. His Honour stated that the sentence of immediate imprisonment could not be suspended for 'protection of the community';
2. His Honour's approach in sentencing, was inconsistent with that approved in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321;
3. His Honour did not take proper account of all relevant mitigatory factors at either stage, but particularly, in the second stage of determining whether the sentence imposed should be suspended, in accordance with Dinsdale;
4. His Honour failed to give due consideration to the sentencing option of suspended imprisonment, in a case where it was a reasonable and realistic option, and taking into account s 6(4) of the Sentencing Act 1995 (WA), failed to give adequate reasons why it deemed that the 'protection of the community' required an immediate term of imprisonment to be served.

Principles applicable to the grant of leave to appeal

19 Leave to appeal is required in respect of each ground and leave should only be granted if the ground of appeal has a reasonable prospect of success. If leave to appeal is refused on each ground, the appeal is taken to be dismissed: s 9 of the Criminal Appeals Act 2004 (WA). In Samuels v The State of Western Australia [2005] WASCA 193 the Court of Appeal examined the words of s 9 of the Criminal Appeals Act 2004 in their context and concluded that a grant of leave under s 9 requires that each ground of appeal should have a rational and logical prospect of succeeding.

Principles applicable to sentencing appeals Relevant legal principles

20 The imposition of a sentence is an exercise of judicial discretion. An appeal court will only intervene if it is demonstrated that the sentencing judge has erred in the exercise of his or her discretion. It is not sufficient that an appellate court may take a different approach or impose a different sentence: see generally Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 and the cases cited there.

21 A ground of appeal which alleges that a sentence was manifestly excessive implies the existence of an error in the exercise of the sentencing discretion. It must be established that the sentence is unreasonable or plainly unjust and could not have been reached in the exercise of proper sentencing discretion: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J).

22 In considering an appeal on the ground that a sentence was manifestly excessive that court must have regard to the following:

(a) the maximum sentence prescribed by law for the offence;

(b) the standards of sentence customarily observed with respect to the particular offence;

(c) the place which the criminal conduct occupies on the scale of seriousness of that type and the personal circumstances of the offender.

See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

23 Section 6(4) of the Sentencing Act 1995 (WA), provides that a court must not impose a sentence of imprisonment on an offender unless it decides that:

(a) the seriousness of the offence is such that imprisonment can be justified; or

24 In Wilson v Robertson [2014] WASC 421 [21] - [22] Beech J outlined a number of factors relevant to the determination of whether to suspend a term of imprisonment, and in considering this appeal I bear those factors in mind.

25 The approach to an appeal against a refusal to suspend a term of imprisonment on the ground of implied error was explained by McLure P in Fogg v The State of Western Australia [2011] WASCA 11 [5] - [10] (Mazza J agreeing [49]). A court must not order immediate imprisonment unless it is positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decisionmaker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error. Thus, it is for the appellant to satisfy the court that a judgment by the primary sentencing court that suspension was not appropriate was a conclusion that was not reasonably open.

26 As both Hall J and Beech J have observed in relation to offences of driving with a blood alcohol exceeding relevant proscribed limits (see Cassoti v Pickering [2013] WASC 174 [20] and Wilson v Robertson [32]) it is difficult to discern a range of sentences customarily imposed for such offences because the penalties vary depending on the number of previous convictions and the precise quantity of alcohol in the blood.

27 In considering the standards of sentencing in respect of the offence of driving under the influence, I bear in mind the observations of Hunt CJ at Common Law, (with whose reasons in this respect Allen J and Loveday AJ agreed) 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.

28 The circumstances which the appellant's counsel relied upon to support the conclusion that a term of immediate imprisonment of eight months was not a sentence which was reasonably open were as follows:

(a) whilst this was the appellant's fourth driving under the influence offence and could only be regarded as serious, this was not a case in which there was a repeated history of flagrant disregard for the safety of other road users;

(b) since the date of the offence the appellant had engaged with Alcoholics Anonymous, psychological counselling and had consulted his general medical practitioner to obtain assistance with his alcohol abuse and has further abstained from alcohol;

(c) the appellant had a supportive family life and was self-employed and employed others;

(d) the past offending and the scale of repeat offending was lower on the scale than in Patterson v Cutler [2010] WASC 316 and Moody v French [2008] WASCA 67; (2008) 36 WAR 393;

(e) in Patterson the sentence ultimately imposed was that of a term of imprisonment, conditionally suspended for 24 months. It was submitted that the record of re-offending and the scale of offending on the part of the appellant in Patterson was worse than that of the appellant in this case;

(f) the standards of sentence customarily observed with respect to the particular offence are to be found in the published decisions of this court in Wilson v Robertson; Patterson v Cutler and Logan v Kuser [2008] WASC 65.

29 As the appellant had three previous convictions for driving under the influence, the maximum term of imprisonment for the driving under the influence offence was 18 months pursuant to s 63(2)(c) of the RTA.

30 In Wilson v Robertson the appellant had been sentenced to 7 months' immediate imprisonment in respect of an offence of driving under the influence of alcohol. The offence was the appellant's third offence. The appellant's blood alcohol level was 0.171 grams per 100 mls of blood. At the time of the offence the appellant was disqualified from holding a licence. Her licence had been cancelled until 2017 due to previous convictions. The vehicle licence in respect of the vehicle the appellant was driving had expired. Beech J allowed the appeal and made an intensive supervision order of 12 months with a programme requirement, and ordered that the appellant undertake 40 hours of community service work (his Honour would have imposed a suspended sentence had that option been open).

31 The factors that led Beech J to allow the appeal were as follows: first, although this was the appellant's third offence, she did not have a repeated history of flagrant disregard for the safety of other road users; secondly, the appellant had abstained from alcohol and sought counselling following an earlier offence, and the catalyst for her relapse into abusing alcohol appears to have been a miscarriage; thirdly, the appellant had engaged in programmes and counselling and had abstained from alcohol since the offence; fourthly, the appellant was living in a supportive environment and was employed; fifthly, the pre-sentence report was significantly positive; sixthly, the appellant had not previously received a suspended prison sentence.

32 Patterson v Cutler involved a case in which the appellant was convicted of driving under the influence of alcohol (the offender's blood alcohol level was 0.157 grams per 100 mls of blood) while subject to a licence suspension and driving an unlicensed vehicle. The appellant had five previous convictions for driving under the influence and four convictions for driving with a blood alcohol reading in excess of 0.08. The appellant also had seven previous convictions for driving while under suspension. The sentence imposed by the magistrate of 12 months' immediate imprisonment for the offence of driving under the influence was overturned on appeal. The appellant was resentenced to imprisonment for 8 months, conditionally suspended for 24 months.

33 In Logan v Kuser the appellant was charged with driving while under the influence of alcohol (the appellant's blood alcohol level was 0.184 grams per 100 mls of blood) and exceeding the speed limit while subject to a licence suspension. The appellant had two previous offences for driving under the influence of alcohol. The term of 9 months' immediate imprisonment imposed by the magistrate was reduced on appeal to 7 months, conditionally suspended for 12 months.

34 In Anderson v Little the appellant's licence had been permanently disqualified. The appellant had three previous convictions for driving under the influence in the preceding 20 years and other convictions earlier. The appellant had previously been in prison for driving under the influence of alcohol. The term of 12 months' immediate imprisonment imposed by the magistrate was reduced on appeal to 8 months' immediate imprisonment.

35 The appellant's counsel sought to distinguish Anderson v Little on the following grounds:

(a) In Anderson the appellant's blood alcohol reading was .303, whereas in the case before me the appellant's blood alcohol reading was .213.

(b) The appellant in Anderson was also convicted of driving whilst under suspension and this, the appellant's counsel submitted, was a more serious offence than driving in breach of the conditions imposed by an extraordinary driving licence.

(c) In Anderson, the fact that the vehicle being driven by the appellant at night did not have any tail lights created a manifest danger to the public and there were no similar aggravating features in this case.

36 The respondent's counsel did not take issue with the points of distinction identified by the appellant's counsel, but submitted that Anderson v Little was a case that was squarely within the range of sentences customarily imposed for driving under the influence offences.

37 The respondent contended that three other cases, to which I refer below, formed part of the range of cases which provide guidance as to sentence.

38 In Moody v French the appellant pleaded guilty to four driving offences; two offences of driving under suspension; one offence of driving in excess of .08; and one offence of driving under the influence with a blood alcohol content of 0.214. The appellant had nine prior convictions for driving under suspension; five prior convictions for driving without a licence; two prior convictions for driving with a blood alcohol level in excess of .08; and three prior convictions for driving under the influence. The term of 12 months' imprisonment imposed by the magistrate for the offence of driving under the influence was reduced on appeal to 10 months.

39 The appellant's counsel sought to distinguish the decision in Moody on the basis that in Moody the appellant committed the relevant offences while she was subject to a suspended sentence of imprisonment. The second ground upon which the appellant sought to distinguish Moody was that the record of the appellant in that case was far worse than that of the appellant here. On balance, it might be fairly said that the appellant in Moody had a worse record, but I do not consider that it can be said that it was 'far worse'. The appellant in Moody was a 41yearold woman. She had three prior convictions for driving under the influence and two prior convictions of driving with a blood alcohol level in excess of 0.08.

40 In Casotti v Pickering the appellant was sentenced by the magistrate to a term of imprisonment of 6 months and 1 day, to be served immediately, for her third offence of driving under the influence. The appellant had a blood alcohol level of 0.272. Her intoxication had caused her to drive off the road into some bushes. Her previous offences were not recent. The most recent was more than 4 1/2 years earlier. On appeal Hall J concluded that options other than immediate imprisonment were clearly open and appropriate. While a suspended sentence may well have been appropriate at first instance, given the impossibility of imposing it on appeal, in the circumstances of that case, the court ordered a community-based order of 6 months with a programme requirement.

41 The final case relied upon by the respondent is McDonald v White [2007] WASCA 138. In that case, the offender pleaded guilty to reckless driving, in respect of which she received a penalty of 6 month's imprisonment, driving under suspension, in respect of which she received a penalty of 9 months' imprisonment, failure to stop when called upon to do so, in respect of which she received a fine, driving with a blood alcohol content in excess of 0.08, in respect of which she received a fine of $1,200, and an offence of unlawful damage, in respect of which she received 6 months' imprisonment. The offender had five previous convictions for driving with a blood alcohol content in excess of 0.08, and nine previous convictions of driving whilst suspended.

42 I am of the view that leave to appeal should be granted to the appellant in relation to ground 1 but that the appeal on that ground should be dismissed. My reasons are as follows.

43 First, the imposition of an immediate term of imprisonment of 8 months does not fall outside the standards of sentence customarily imposed in respect of a fourth offence of driving under the influence of alcohol. The wide variety of facts that make up the factual matrix in each case makes it difficult to draw precise comparisons between the facts and sentences imposed in one case and those in another. I accept that the suspended sentence imposed on the appellant in Patterson points to a more lenient approach and one which would favour the imposition of a suspended sentence. On the other hand, Moody and Anderson provide support for the conclusion that a term of immediate imprisonment is within the range of sentencing options. Although in Wilson Beech J allowed the appeal and substituted a non-custodial sentence in place of the sentence of 7 months' immediate imprisonment, his Honour did so on the basis of his consideration of circumstances which were personal to the appellant in that case as opposed to on the basis that the sentence of 7 months' immediate imprisonment was outside of the range, (in making this observation I do not overlook his Honour's observation, to which I have referred above, about the difficulty in discerning a range of sentences in cases such as this).

44 Secondly, whilst it is, of course, possible to conceive more serious instances of driving under the influence of alcohol, this was a serious case not solely because of the high blood alcohol level but also because the appellant failed to negotiate a roundabout and collided with a tree. The risk that the appellant's driving posed to the public is obvious. Moreover, having made alternative transport arrangements so that he could avoid driving after drinking, nonetheless the appellant drove his car in breach of the terms of his extraordinary driving licence.

45 Thirdly, the submissions made in mitigation to the effect that the appellant had taken steps to obtain help to curb his drinking and deal with his underlying emotional or psychological problems must be considered in the context of the contents of the pre-sentence report and the particular passages which I have set out above. The offences were committed in February 2014. The appellant was interviewed for the purposes of preparing the pre-sentence report sometime between 14 May 2015 and 2 June 2015. The passages in the pre-sentence report which I have quoted suggest that as at the date of the interview the appellant had not started to abstain from alcohol and his attempts to obtain psychological counselling had not at that stage gone beyond obtaining a referral from his general medical practitioner for such counselling. The conclusion of the risk assessment section of the pre-sentence report to the effect that there is a high likelihood that the appellant might continue to re-offend in a like manner provides no comfort that the appellant will not re-offend and supported the magistrate's conclusion that a sentence of immediate imprisonment was the only appropriate sentencing option.

46 Fourthly, the appellant had received suspended terms of imprisonment for road traffic offences on three occasions in the past - 1999, 2006 and 2008. In 2002 he had been sentenced to terms of immediate imprisonment for road traffic offences. Clearly, neither the terms of imprisonment nor the suspended terms of imprisonment imposed in respect of these offences had the requisite deterrent effect.

47 Fifthly, the appellant was 49 years old when he committed the offence. There is nothing to suggest that there was a particular catalyst for the offending. In short, it cannot be explained by reference to youthful indiscretion or immaturity or by some personal tragedy.

48 Sixthly, the road traffic offences which preceded the offence for which the appellant was sentenced were committed in 2012. The offence cannot be considered as an isolated relapse following a period in which there was no offending.

49 For those reasons, I consider that there are no grounds which justify appellate intervention in this case.

50 By ground 2 the appellant alleges express error on the part of the magistrate in failing to suspend the term of imprisonment by not following the approach set out in Dinsdale.

51 The essence of the error alleged is that the magistrate did not take proper account of all of the relevant mitigatory factors when considering whether or not to suspend the sentence of imprisonment.

52 It was argued on the appellant's behalf that the magistrate should have given specific reasons explaining why immediate imprisonment was the only option.

53 It was further submitted that it cannot safely be inferred from the magistrate's remarks in relation to whether the term of imprisonment should be suspended or not that his Honour had, in fact, reasoned correctly and considered all of the mitigatory factors. It was argued that the magistrate had to articulate his consideration of those factors. Reliance was placed by the appellant on Hull v The State of Western Australia [2005] WASCA 194 and, in particular, on the judgment of Roberts-Smith J at [31].

54 In the course of his sentencing remarks the magistrate identified eight mitigatory factors as follows:

(5) the appellant had a stable relationship with his daughter;

(7) the appellant had taken steps to address his problems with alcohol; and

(8) the appellant suffered as a child as a result of a close family member being an alcoholic and was now seeking psychological help in that respect.

55 When his Honour came to consider the question of whether the term of imprisonment should be suspended or not he referred to '... all of the matters that I have referred to ... ' for the purposes of deciding whether to suspend. Those matters must be taken to be the eight matters to which I have referred.

Notwithstanding all of those matters I do not think it is appropriate to suspend this term of imprisonment. Protection of the community means that you need to get this message and other people do, Mr Wilson, that this term will be served immediately.

57 I am satisfied that the magistrate's remarks indicate that in his process of reasoning as to whether the term of imprisonment should be suspended or not, the magistrate turned his mind again to all of the relevant mitigatory factors.

58 With respect to the submissions advanced by the appellant's counsel, I do not think that the magistrate's reasons, brief though they may have been, can be interpreted in any other way. I would refuse leave to appeal in respect of ground 2.