Criminal law and procedure - Sentence suspended sentence - Further offence - Whether unjust to impose immediate imprisonment

Road Traffic Act 1974 (WA), s 49

Sentencing Act 1995 (WA), s 80

Cross v Cook [2001] WASCA 242

2 Because I have had the benefit of submissions in advance and listened to counsel this morning, I am able to deliver judgment now. This is an appeal against an order that the appellant serve an immediate term of imprisonment for driving while disqualified because he had breached a suspended sentence of imprisonment imposed for a fourth offence of driving while disqualified within 2 months of the imposition of that sentence.

3 The essence of the appeal is that the circumstances which have become known since the suspended sentence was imposed are sufficient to make it unjust to trigger a sentence of immediate imprisonment. Allied to this is a submission that a concurrent term of 3 months and 1 day's imprisonment for a fifth offence of driving under disqualification should have been suspended, in essence, for the same reasons as would have led to the further suspension of the earlier term.

4 The background facts are that the appellant was 25 years old at the time of sentence. He is a qualified electrician. After moving interstate for some time he commenced a business on 17 November 2001 in Kensington. It is a fish and chip shop cum cafe known as the Smashed Crab. He apparently devotes all his time to this business.

5 It was an issue before the Magistrate as to the extent to which the business is a partnership. It does appear that the applicant is the sole signatory on the lease agreement and generally works six days as owner-manager. A term of imprisonment was, at the time of sentence, and no doubt is, bound to have some detrimental effect on that business, perhaps a significant detrimental effect.

6 The appellant has, what counsel for the respondent described as, a poor driving record, particularly for offences of driving while under suspension, but there are other driving offences of significance as well. On 24 August 2001 the appellant was sentenced to 3 months and 1 day's imprisonment for a fourth offence of driving under suspension. This sentence was suspended for a period of 18 months. At that time the magistrate, the same magistrate whose decision is presently under appeal, said:

"Your history indicates that irrespective of what the court says, you'll just go out and drive whenever the whim dictates."

7 On 25 October 2001 the appellant drove a Porsche motor vehicle at 107 kilometres an hour in a 60 kilometre per hour zone in Great Eastern Highway at South Guildford. Clearly at that time he was both driving under suspension and of course under the earlier term of suspended imprisonment. So the offence occurred 2 months later but there was a considerable delay in dealing with the matter, in part because a photograph of the driver was unclear. Ultimately, the applicant went to the police in May 2002 to view the photographs. He admitted at that time that he was driving the vehicle.

8 There was a further delay, which is unexplained but to which no blame could be attributed to the appellant, until a summons was taken out in October 2002 following which, on 12 December 2002, the appellant pleaded guilty. During the delay, the appellant got on with his life and established his business. This is the substance of the submissions made on his behalf to the effect that the Magistrate erred in not attributing to those matters a greater weight such as to lead to a suspended term of imprisonment.

The Sentencing Act 1995 (WA): Suspension of sentence

9 I turn now to the Sentencing Act. When a person is in breach of a suspended sentence the provisions of s 80 apply. The court must make an order of imprisonment unless it decides it would be unjust to do so in all the circumstances that have arisen or have become known since the suspended imprisonment was imposed.

10 In the trial Court and before this Court, Mr Young points to the following matters as relevant: although the breaching offence was only about 2 months after the imposition of the suspended term the appellant was not dealt with until a further 14 months later, during which time he committed no further offences and got on with his life; he should be given credit for admitting that he was the driver of the car when the Multanova photograph did not clearly identify him; the nature of his business and his role in it; the fact that he had moved to a suburb close to his place of business to ensure that he could operate it without the need to drive; the business had been operating for almost a year by the time of sentence and the period of suspension had almost finished.

11 I might mention I regard this last point about the period of suspension as not terribly helpful because in fact the breach had occurred at a very early stage. The applicant also, in written submissions, points to the fact that the disqualification period of 2 years will act as a significant penalty.

The principles underlying the Sentencing Act s 80

12 The principles governing the application of s 80 are outlined in Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364, and also in Holcroft v The Queen [1996] QCA 478; [1997] 2 Qd R 392. In Hall, Murray J, with whom Pidgeon J and Kennedy J concurred, held at [31]:

"... the applicant carries the forensic onus to persuade the court that a Judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the Judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the Judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused."

13 I turn now to the reasons of the Magistrate. The Magistrate directed his attention to the correct test under s 80(3). He noted and outlined the business arrangements which had been central to the submissions before him, noting in particular that it was not a sole operation. He noted the business effectively commenced on 17 November 2001. He concluded his remarks by saying:

"You really have to learn Mr Zammit. If a court says you're under suspension and that you are under a suspended gaol term, you do not go out driving. You have.

I do not believe there is anything particularly significant in the circumstances that have arisen since being placed under a suspended gaol term to warrant anything other than a gaol term."

14 The Magistrate did exercise some leniency. He imposed a concurrent sentence of 3 months and 1 day on the appellant for what was then the fifth charge of driving under suspension, so that the total sentence was 3 months and 1 day for what were respectively the fourth and fifth offences of driving under suspension.

15 In my opinion it was open to the magistrate to conclude the matter in the way he did. The matters which counsel raised were clearly factors which needed consideration. However there were other factors. The appellant had deliberately breached the earlier order within 2 months. The offence of driving under suspension is regarded in this court as a very serious offence, often meriting imprisonment. The chances of any sentence other than an immediate term of imprisonment for a fifth offence of this type are slight.

16 Matters raised by counsel, although clearly relevant and capable of weight, were before the Magistrate. He appears to have given them consideration. An appeal court cannot simply substitute its decision for that of the sentencing court. In my judgment it was open to the Magistrate to cancel the order for suspension of imprisonment and also to impose an immediate term of imprisonment for a fifth offence of driving under suspension, notwithstanding the delay and notwithstanding the business and other matters which were put before the Magistrate and have been put before me today. Therefore, this appeal is dismissed.