WILSON -v- ROBERTSON [2014] WASC 421 (12 November 2014)

4 On 29 August 2014, the appellant pleaded guilty to the following charges. On 1 August 2014, she:

(1) drove a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 63 of the Road Traffic Act 1974 (WA);

(2) drove a vehicle while her licence was disqualified, contrary to s 49 of the Road Traffic Act; and

(3) drove a motor vehicle while the vehicle was not licensed, contrary to s 15 of the Road Traffic Act.

5 The facts were not in dispute, and were stated by the prosecutor as follows.[1]

6 At quarter to four in the afternoon on Friday, 1 August 2014, the appellant was driving her vehicle and was stopped by police. She was breathalysed. Her blood alcohol level was calculated as being 0.171 grams per 100 mls of blood. At the time, she was disqualified from holding a licence, and her licence had been cancelled until 2017 due to previous convictions. The vehicle licence had expired in July 2014.

7 The appellant did not have any previous convictions for driving while under disqualification, or for driving an unlicensed vehicle.

8 She had two previous convictions for driving under the influence. The first was in 2010. The second of those convictions was recent, being in February 2014.

9 Duty counsel appearing for the appellant before the magistrate sought an adjournment so that a presentence report could be obtained and to enable the appellant to engage in a programme at Holyoake. The magistrate refused the application, saying that the matter could be dealt with by way of an oral presentence report.[2] There is no complaint in this respect.

10 In the course of the oral presentence report, the following points were made:[3]

(a) the appellant has clearly identified that she has issues with substance abuse, referring to the two previous offences of driving under the influence, one being in February 2014;

(b) the appellant stated that previous substance abuse had arisen from her relationship;

(c) after the February 2014 offence, the appellant had entered into a new relationship and abstained from drinking alcohol;

(d) after some bad news, the appellant relapsed the week that this event happened;

(e) since then the appellant had started substance abuse counselling at Holyoake and is attending sessions at Alcoholics Anonymous;

(f) the appellant is prepared to continue to engage in substance abuse counselling;

(h) the officer stated that she was suitable for, and requires, substance abuse counselling and possibly a programme relating to cognitive thinking given that the appellant had not really given any satisfactory explanation for driving while under the influence; and

(i) the officer recommended a 12month communitybased order, such as an intensive supervision order or a presentence order, to monitor the appellant's compliance with her substance abuse counselling and supervision.

11 Duty counsel appearing for the appellant before the magistrate made the following points in the plea in mitigation:

(a) the appellant is 36. She has had ongoing issues with alcohol since she was about 29 arising from problems associated with physical and verbal abuse from her then partner;

(b) she made efforts to deal with her alcohol problem in 2012, visiting a facility in Thailand and, on returning to Western Australia, attending Alcoholics Anonymous meetings;

(c) following the offence in February 2014, the appellant engaged in counselling with Holyoake. Her circumstances became more positive in that she got new accommodation, employment, and commenced a relationship with her current partner;

(d) in April 2014, she discovered she was pregnant. Just prior to this offence, the appellant was advised that she had miscarried;

(e) as a direct consequence of this, she relapsed back into alcohol use;

(f) since the offence, the appellant has abstained from alcohol;

(g) counsel handed up a letter from her partner and housemate confirming their support of the appellant generally, including that she attends her meetings and counselling.

12 The magistrate stated that she had 'done all of that previously' and that 'none of that's new'.[4] Counsel submitted that there had been some very tragic circumstances that had seen her relapse, to which his Honour responded that 'lots of people face tragic situations daily' and that 'this is just a cycle of repeating what she has done previously'. His Honour stated that her last offence was in Midland and that he was confident he had heard the matter and said to her 'if you drive again under the influence you should expect a jail term'.[5] Counsel accepted that it was most likely that that was said.

13 Counsel submitted that there should be a presentence order.

14 The magistrate gave the following reasons for sentencing the appellant to a term of immediate imprisonment of 7 months:[6]

HIS HONOUR: So if you would stand up, Ms Wilson. I'm sure I did give you a very grave warning on the last occasion, that were you to come back to court again for another driving under the influence you could expect an immediate term of imprisonment. And your offending is escalating. It's escalating in the sense that it's becoming more frequent. And now this driving under the influence is coupled with a driving under a cancelled licence, and driving an unlicensed vehicle, with no excuse or reason whatsoever as to why you were driving, in Midland, at that time of day, on a Friday, when there is invariably lots of cars on the road, lots of people out and about, kids out of school, around town. You put all of those people, as well as yourself, in grave danger of harm by deciding to get in a car when you weren't entitled to in the first place, with that blood alcohol reading.

And it's just not acceptable that you continue putting the community at this kind of risk. There has to be a penalty that applies that makes it clear that can't continue, that makes it clear to you and others it can't continue, and offered some protection to the community for this kind of offending. Your record is not an aggravating factor in the sense you have already been dealt with and punished for those matters but your course of offending is relevant in respect to the risk that is now presented to the community by your continued offending, continued - getting in a car and driving with that kind of blood alcohol level.

I do note you have the support of your partner and your housemate. They have written very eloquent letters on your behalf but you had that support, that friendship at the time you committed this offence. And, as I said, as I have already observed, there has been this cycle of stress, drinking, offending, counselling and then a repeat of the whole process. So it's not as if this is the first time you have attempted counselling. You have attempted AA, you have gone to Holyoake, you have done that before and nothing seems to prevent you from further offending when there's a further stressful or difficult or tragic incident in your life.

And I appreciate you have taken steps again to go to AA, go to Holyoake and address this problem. You have got the support of others in the community. You have got employment but none of that is different to what existed at the time of this offending. And in my view the only appropriate penalty today is a term of imprisonment to reflect the seriousness of this matter and to act as a personal and general deterrent. And, ultimately, a protection for the community.

These services will still be available for you when you get out. I can only hope that you take up the commitment you are presently showing on the eve of facing sentencing for this matter - these matters. I'm not persuaded at the end of the day the sentence should be suspended. It's just too serious and in all the circumstances, there now needs to be a penalty that really does act as a personal and general deterrent and brings home to you, you just can't keep doing this.

I will take into account your personal circumstances, the clear plan you have for your rehabilitation, the commitment you certainly have at this stage. What I have heard from your counsel and from Mr Farrell, from CJS in terms of your oral presentence report. I will take into account your very early plea of guilty. There will be a discount of 25 per cent and in regard to your personal circumstances I will reduce the penalty to one of seven months imprisonment but I'm afraid that's to be served immediately. Life disqualification of your driver's licence, a fine of $400, nine months cumulative for the driving under a cancelled licence, $100 fine and an order to pay $139.65, being half the annual licence fee for the unlicensed vehicle and costs of $79.

I just don't know, Ms Wilson, after what I would have said to you on the last occasion, you knowing the risks, you having everything at risk, employment, your relationship - what more I could possibly do to give me any confidence of you remaining in the community with the sentence that didn't require immediate imprisonment or a suspended sentence that would give me any confidence that this wouldn't occur again the next time some stressful incident occurred in your life. And it's inevitable that's going to happen. We all face them.

ACCUSED: The vehicle has been removed from where I live. I don't have any - I don't have any access to a vehicle at all. I catch public transport to work.

HIS HONOUR: What about your partner?

ACCUSED: Yes. He has - he has a car but he doesn't have a licence. He's locked it in - in the back of the business. I don't have access to it.

HIS HONOUR: Access to vehicles are all too easy, I'm afraid, Ms Wilson. That alone is not enough to give me that confidence. It's a sentence of seven months immediate imprisonment, I'm afraid. You will need to stand down in custody.

1. The learned sentencing magistrate erred in imposing a sentence of imprisonment in circumstances where the seriousness of the offending was not such that only a sentence of imprisonment could be justified.
2. The learned sentencing magistrate erred in ordering that the sentence of imprisonment imposed be served immediately, when in all the circumstances it was appropriate to suspend the term.

16 These grounds of appeal do not identify any express error. Rather, each ground asserts an implied error, based on the result at which the magistrate arrived.

Implied error and manifest excess: legal principles

17 A claim of manifest excess involves establishing an implied error. What must be established is that a sentence of the nature or length imposed is plainly unjust or unreasonable, and could not have been reached in the proper exercise of the sentencing discretion.

18 In determining whether a sentence is manifestly excessive (or inadequate), the sentence should be examined from the perspective of the maximum sentence prescribed for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.[7]

19 By s 6(4) of the Sentencing Act 1995 (WA), 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 only imprisonment can be justified; or

20 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment.[8] In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[9]

21 In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender. Among the factors to be considered when deciding whether or not to suspend a term of imprisonment are:

(a) the perceived seriousness and intrinsic character of the offence;

(d) factors personal to the offender, including mitigating circumstances;

(e) the need to demonstrate the community's condemnation of offences of the kind in question;

(f) the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and

(g) any factors militating in favour of an exercise of mercy.[10]

22 Of course, the objective features of an offence may, in a given case, outweigh the personal considerations of rehabilitation and mercy; it may require that the prison sentence be immediately served, notwithstanding mitigating personal circumstances.[11]

Implied error in a refusal to suspend: legal principles

23 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.[12] 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.

24 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.

25 Both grounds raise questions of what conclusions were reasonably open to the sentencing magistrate. For that reason, it is convenient to deal with both grounds of appeal together.

26 For the reasons that follow, in my opinion, it was open to the magistrate to conclude that imprisonment was the only appropriate sentence, but it was not open to conclude that the imprisonment should be served immediately. Thus, ground 1 fails, and ground 2 succeeds.

27 The appellant was sentenced for her third offence of driving under the influence. Consequently, the maximum sentence was a term of imprisonment of 18 months.

28 The appellant had been sentenced for a second offence of driving under the influence relatively recently, about five months earlier in February 2014. The magistrate proceeded on the basis that at that time he had warned the appellant that if she committed the offence again, she would face imprisonment. That assertion was not challenged, and I accept it.

29 Repeat offending for driving under the influence is a serious offence for which personal and general deterrence are important. I respectfully agree with the following observations of Hall J in Casotti v Pickering:[13]

The danger that drivers with such high levels of intoxication pose to themselves and other road users cannot be denied. A car in the hands of a drunk driver is an unpredictable and potentially lethal machine. The magistrate was correct to view the offence as serious and to stress the importance of deterrence. However, offences of driving under the influence of alcohol do not always attract imprisonment. Such a sentence is not even open for a first offence, for which only fines are provided.

The reason why a sentence of imprisonment was open here was because the appellant had committed relevant prior offences. Clearly the legislature intended that repeat offenders would be liable to be treated more harshly. One reason for this must be that persistent offending shows a general disregard for the law and a resistance to the deterrent effect of previous penalties.

30 In assessing a repeat offender, it is relevant to consider the spread and time period of previous offences. I agree with the following observations in Casotti v Pickering:[14]

In considering whether an offender is a persistent and intractable offender, it is relevant to consider not only the number of prior offences but the spread and time period over which they have occurred. Generally an offender who reoffends within a short time is likely to be viewed more seriously than one who reoffends after many years. It may be difficult to view the former as anything other than an intransigent offender who is acting in defiance of the law, but an offender who has spent many years without further offending will usually be viewed as deserving of some credit, despite their subsequent relapse. This is because lapse of time and an infrequency of offending conduct may indicate that the behaviour is out of character and that the offender is unlikely to repeat it.

31 The respondent submits that, as a general principle, offenders who repeatedly drive while disentitled, particularly when under the influence of alcohol, should expect to receive immediate custodial terms.[15] That proposition is not apposite to the present case. The appellant had no previous convictions for driving when not licensed to do so.

32 It is difficult to discern a range of sentences customarily observed for offences of this type.[16] This may be because, like offences of driving with a blood alcohol level in excess of 0.08, the penalties vary depending on the number of previous offences and the precise quantity of alcohol in the blood.[17]

33 The following cases are relevant to considering a range of sentences customarily imposed:

(a) in Patterson v Cutler,[18] the appellant was convicted of driving under the influence of alcohol 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;

(b) in Logan v Kuser,[19] the appellant was charged with driving while under the influence of alcohol 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;

(c) 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 imprisoned 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;

(d) in Moody v French,[20] the appellant pleaded guilty to four driving offences: two offences of driving under suspension; one offence of driving in excess of 0.08%; 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 0.08% 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;[21]

(e) in Casotti v Pickering, the appellant was sentenced by the magistrate to a term of imprisonment, to be immediately served, of 6 months and 1 day for her third offence of driving under the influence. The appellant in that case had a blood alcohol level of 0.272 g. 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 four and a half years earlier. On appeal, Hall J concluded that options other than immediate imprisonment were clearly open and appropriate.[22] 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 communitybased order of 6 months with a programme requirement.

34 In considering these cases, I bear in mind that, as Jenkins J pointed out in Anderson v Little,[23] the court on appeal should not simply compare the sentence under challenge directly with that imposed upon another offender solely because the two offenders may have similar characteristics and may have committed similar crimes. What must be considered is whether the sentences are within the range appropriate to the objective gravity of the particular offence and the subjective personal circumstances of the particular offender. The question is not whether the sentence in this case is more or less severe than some other individual sentence which forms part of the range.

35 Nevertheless, in my view, consideration of the range of sentences imposed in these cases, and of the circumstances of this offending and the appellant's personal circumstances, seems to me to provide support for a conclusion that the imposition of a term of immediate imprisonment was not open.

36 In my view, the circumstances that this was the appellant's third offence, and that the second offence had occurred in recent months, coupled with the considerations I have referred to in [29] [30], meant that the need for personal and general deterrence required imprisonment.

37 However, in my opinion, in the circumstances of the case, suspension of the term of imprisonment was appropriate, and the contrary conclusion was not reasonably open. The following considerations lead me to that view.

38 First, this was the appellant's third offence. While that is certainly serious, this is not a case where there is a repeated history of flagrant disregard for the safety of other road users.[24]

39 Secondly, in my respectful view, the magistrate was too quick to dismiss the significance of the particularly tragic circumstances that were the catalyst for the appellant's relapse. It is, of course, true, as the learned magistrate emphasised, that it is necessary for people to cope with all that life brings without descending into the abuse of alcohol. Nevertheless, it was to the appellant's credit that she had successfully engaged in counselling and programmes, and had abstained from alcohol, following her offence earlier in the year, until her miscarriage. Her miscarriage occurred very close in time to this offence. In the circumstances, the appellant was by no means 'an intransigent offender who is acting in defiance of the law'.[25]

40 Thirdly, since this offence, the appellant had engaged with programmes and counselling and had abstained from alcohol.

41 Fourthly, the appellant was living in a supportive environment, and was employed.

42 Fifthly, the oral presentence report was significantly positive. It identified that the appellant recognised her issue and was willing to engage in programmes, and recommended a communitybased order.

43 Sixthly, the appellant has not previously had a suspended sentence. A suspended sentence would provide a very real form of personal deterrence, since further offending would trigger the suspended sentence.

44 For these reasons, I grant leave to appeal and uphold ground 2.

45 A suspended term of imprisonment would have been an appropriate punishment. However, it is now not open to impose that,[26] given that:

(a) the appellant was sentenced to a term of 7 months;

(b) she has served more than a month of her sentence;

(c) a term of imprisonment of less than 6 months is not permissible;[27]

(d) a suspended term of more than 6 months would be inappropriate, since a suspended sentence should not be imposed of a length greater than if the sentence were ordered to be served immediately,[28] and appropriate credit must be given for the time spent in custody.

46 As a result, I sentenced the appellant to an intensive supervision order of 12 months, with a programme requirement. There will also be a community service requirement, as required by s 106(4) of the Road Traffic Act. That requirement is that the appellant undertake 40 hours of community service work.

47 Any breach of the intensive supervision order, by reoffending or by breaching any of its conditions, means the appellant will be liable to be resentenced.

[7] Chan v The Queen (1989) 38 A Crim R 337, 342.

[8] s 39(2) and s 39(3).

[9] The State of Western Australia v Johnson [2009] WASCA 224 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] [14], [58].

[10] Powell v Tickner [2010] WASCA 224 [52]; R v Liddington (1997) 18 WAR 394, 406.

[11] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86]; Powell v Tickner [53].

[12] Fogg v The State of Western Australia [2011] WASCA 11 [5] [10], Mazza J agreeing [49].

[13] Casotti v Pickering [2013] WASC 174 [26] [27].

[15] Respondent's submissions [10], citing Anderson v Little [2009] WASC 143 [84] and Humble v State Solicitor for Western Australia [2009] WASC 99 [11].

[17] Pavlitsas v Rowe [2013] WASC 233 [16].

[18] Patterson v Cutler [2010] WASC 316.

[19] Logan v Kuser [2008] WASC 65.

[20] Moody v French [2008] WASCA 67; (2008) 36 WAR 393.

[24] Compare, for example, Logan v Kuser [31] and Moody v French.

[26] See Casotti v Pickering [37], Almonte v Beswick [2013] WASC 207 [68].

[27] Sentencing Act s 86.

[28] Sentencing Act s 76(2).