Anderson v Edwards
[2003] WASCA 59
•7 MARCH 2003
ANDERSON -v- EDWARDS [2003] WASCA 59
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 59 | |
| Case No: | SJA:1147/2002 | 7 MARCH 2003 | |
| Coram: | EM HEENAN J | 7/03/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | BRENDON EUGENE ANDERSON MICHAEL BRUCE EDWARDS |
Catchwords: | Appeal Road Traffic Act 1974 Driving while under suspension Sentence of imprisonment Previous convictions in Children's Court wrongly taken into account Young Offenders Act (1994) Appeal allowed, fine substituted |
Legislation: | Road Traffic Act 1974 Young Offenders Act 1994, s 189 |
Case References: | P (A Child) (1997) 94 A Crim R 593 Cross v Cook [2001] WASCA 242 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL BRUCE EDWARDS
Respondent
Catchwords:
Appeal - Road Traffic Act1974 - Driving while under suspension - Sentence of imprisonment - Previous convictions in Children's Court wrongly taken into account - Young Offenders Act (1994) - Appeal allowed, fine substituted
Legislation:
Road Traffic Act 1974
Young Offenders Act 1994, s 189
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Mr M A G Jenkin
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
P (A Child) (1997) 94 A Crim R 593
Case(s) also cited:
Cross v Cook [2001] WASCA 242
(Page 3)
1 EM HEENAN J: This is an appeal, by leave granted by Roberts-Smith J on 24 December 2002, from the sentence of imprisonment imposed upon the appellant, Brendon Eugene Anderson, at the Court of Petty Sessions in Leonora on 10 December 2002 following his conviction, on a plea of guilty, for an offence of driving a motor vehicle without any motor driver's licence, his licence being under suspension at the time.
2 In the Court of Petty Sessions at Leonora the learned Magistrate, Mr D Imlah SM, imposed a sentence of 6 months' imprisonment for this offence and in addition imposed a period of disqualification of 9 months cumulative upon an earlier suspension. At the time of this conviction the appellant had been charged with, and pleaded guilty to, three other offences arising out of the same incident. The first was a charge of failing to stop when called upon by the police, contrary to the provisions of s 53(1)(b) of the Road Traffic Act. The second was one of dangerous driving, contrary to s 61(1) of the Road Traffic Act. The third was driving an unlicensed vehicle, contrary to s 15(3) of the Road Traffic Act. Separate orders were made by the learned Magistrate for each of those charges. In relation to the conviction for refusing to stop when called upon there was a fine of $200. In relation to the offence of dangerous driving there was a fine of $300. In relation to driving an unlicensed vehicle no penalty was imposed.
3 The circumstances of the offences were relatively straightforward. At about 10.30 am on Sunday 24 November 2002, the appellant drove a passenger vehicle without registration plates east along the Leonora-Laverton Road near location 51. The vehicle was observed by the police to do a hurried U-turn and then accelerate away from the police. Because of the manner in which the vehicle turned and the speed at which it was travelling the police attempted to stop the vehicle. This was done by a police pursuit vehicle following about 300 metres behind which activated its emergency lights. The appellant did not stop. As the police vehicle closed the gap on the escaping vehicle the appellant then turned south onto a bush track in order to avoid being stopped. A second police vehicle, a four-wheel drive vehicle, followed the appellant along the bush track for about 2 kms. As the appellant was in front of the pursuing four-wheel drive police vehicle by about 500 m the appellant stopped his vehicle and changed into the passenger seat and allowed the passenger to drive. Police eventually caught up and located the vehicle and the driver stopped.
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4 The police conveyed two adults back to the Leonora police station where the appellant admitted to being the driver. He stated that he observed the emergency lights and that he turned onto the bush track in an attempt to avoid arrest. The police conducted a licence check and discovered that the appellant was not the holder of a valid Western Australian driver's licence because his licence had previously been suspended by the Leonora Children's Court on 24 July 2001 with a revocation of expiry not due until 24 January 2004. According to the police, although denied by the appellant, while attempting to avoid arrest the appellant's vehicle reached speeds of up to 140 kms per hour. While driving along the bush track the appellant had to avoid numerous large puddles on the route and did so by swerving into the bush. At this point, according to the police, the appellant was travelling at about 90 kilometres per hour.
5 When the police eventually stopped the vehicle it was found that a 5-month old infant was in the car, held by the passenger, who turned out to be the mother of the child and the de facto wife of the appellant. There was no baby seat in the vehicle to secure any child. The police discovered that the vehicle was not currently licensed and was not the subject of any permit for the journey. It had no registration plates and the police were unable to ascertain when the registration had expired. The appellant stated he had purchased the vehicle from another person so he could drive it around the bush. The defendant participated in a video interview, admitted all the offences and pleaded guilty at the earliest opportunity.
6 Before the Court of Petty Sessions counsel for the appellant submitted that it had not been the intention of his client to drive on the roadway this day, and that he was driving cross-country to some remote lake to take his wife and child on an outing. However, because of recent rain there were puddles and creeks running in the area and it was impossible to complete the journey cross-country. Accordingly, he drove on to the Leonora-Laverton road and it was there that he came across the police and the events which I have just outlined followed.
7 The appellant was aged 18 years at the time of this offence. He was living with the woman accompanying him in the car and he was employed as a sample operator at a nearby mineral laboratory. The vehicle was plainly a bush wagon. It emerged before the Court of Petty Sessions at Laverton that the accused had a series of convictions for other offences dating from 21 April 1998 to 13 February 2002 which had all been dealt with in the Children's Court either at Leonora or Kalgoorlie. They involved convictions for a variety of offences, including assault, burglary,
(Page 5)
- stealing, robbery, assaulting a public officer and escaping legal custody. There are also convictions for driving offences, namely driving without a motor driver's licence, reckless driving and further offences for driving whilst under suspension.
8 For reasons which it is unnecessary to examine, attention before the Court of Petty Sessions in Leonora on this sentencing occasion appears to have been confined to the previous convictions for driving whilst under suspension. There were four such offences. They have been tabulated by the appellant in the written submissions handed up this morning and are as follows. First, on 31 August 1999 the appellant was disqualified from holding or obtaining a motor driver's licence for 2 months cumulative and fined $200 under the provisions of s 4(5A) of the Young Offenders Act. Second, on 1 October 1999 on his second conviction for driving under suspension, a 6 months' intensive youth supervision order was imposed and the appellant was disqualified from holding or obtaining a motor driver's licence for a 9-month period, this being a mandatory penalty. Third, on 1 March 2000, for the third such offence, a 6 months 20-hour youth community based order was imposed and the appellant was disqualified from holding or obtaining a motor driver's licence for a further 9 months' cumulative on earlier suspensions. Fourth, on 24 July 2001 on the next such offence another youth community based order for 3 months with 10 hours' supervision was imposed and the appellant was disqualified from holding or obtaining a motor driver's licence for a further 9 months cumulative on earlier suspensions.
9 When imposing the sentence of imprisonment in the Court of Petty Sessions in Leonora last December, the learned Magistrate said, in the course of his reasons:
"In relation to the dangerous driving there will be a fine of $300 and in relation to the driving while legally disentitled there will be imprisonment for 6 months and certainly the situation the record had regard to, but it is more the circumstances of the driving under suspension, including the issue of the infant 5 months old in the car, and obviously without any regard for the life of the infant."
10 By the amended grounds of appeal and the submissions made by the appellant today, two substantial grounds are raised against that disposition and sentence. First, it is submitted that, because the previous convictions for driving whilst under suspension occurred in a Children's Court and because the first two of them were imposed more than two years before
(Page 6)
- this present conviction and the second two resulted in the imposition of a youth community based order, those convictions are not to be regarded as convictions for any purpose except as provided by s 189 of the Young Offenders Act of 1994. This status of those earlier convictions is produced by the operation of s 189(2) and (5) of the Young Offenders Act. The appellant further relies upon the analysis of s 189 of the Young Offenders Act contained in the decision of the Court of Criminal Appeal in the case of P (A Child) (1997) 94 A Crim R 593. That application of s 189 is accepted by counsel for the respondent in this case and, with respect, it is one that I consider to be correct.
11 The second ground raised against the disposition of this conviction by a sentence of imprisonment is that, in the passage which I have already read, the learned Magistrate appears to have regarded, as an aggravating circumstance meriting and contributing to the sentence of imprisonment, the fact that there was a 5-month old child unsecured in the car and that the circumstances of the driving while under suspension involved a threat to the life or safety of the infant. The submission for the appellant is that in doing so, the learned Magistrate regarded the dangerous driving as an aggravating factor, but that he was wrong to do so because, already having convicted and fined the appellant for the dangerous driving offence arising out of the same instance, the significance of those characteristics of the episode had been addressed and that to bring them to account a second time has resulted in additional punishment being imposed in part for the earlier offence.
12 Again, counsel for the respondent accepts that submission. Similarly I agree with respect that that is a correct criticism and for those two reasons the determination of this sentence was affected by error and the learned Magistrate's discretion miscarried. Accordingly, I consider that this Court can and must review the circumstances of this case as emerging from the evidence in the light of the constraints imposed by s 189 of the Young Offenders Act and in the knowledge that the appellant has already been punished for the other unlawful characteristics of the driving on this occasion.
13 It is submitted for the appellant that this being, effectively a first offence for driving whilst under suspension, the accused, being of a young age in a relationship with the woman in the car, in stable employment and having made an early plea of guilty, should receive the minimum penalty which would be a fine of $400 and a further period of disqualification of 9 months. Counsel for the respondent, while not entirely conceding that submission, has accepted that the imposition of a sentence of
(Page 7)
- imprisonment in this case cannot be said to be the only disposition or penalty appropriate and that other alternatives, not involving imprisonment, would have been adequate. Counsel for the respondent accepts that, in this case, having regard to the antecedents of the appellant, a fine plus a mandatory period of further disqualification would be adequate.
14 In those circumstances it seems that I should accept those submissions and quash the sentence of imprisonment and in lieu order that the appellant be fined and be subject to the same period of cumulative suspension imposed by the learned Magistrate, namely, 9 months. As to the quantum of the fine, it has been submitted for the appellant that the minimum fine applicable of $400 would be appropriate and that this is a common disposition for a first offence for driving whilst under suspension in this state. I am in no position to say whether or not that is a regular disposition for such first offences and I venture to doubt that it is but much must always depend on the circumstances of the particular case.
15 There is authority to the effect that even for a first offence for driving whilst under suspension imprisonment may be imposed because this is an offence which shows as a characteristic wilful and conscious disregard of the law in the light of the previous conviction. In this case there does not seem to me to be any factor which would explain this driving nor any necessity or emergency which might ameliorate it. It was simply a case of the appellant going for a drive in the country, admittedly initially overland, but then unhesitatingly on the roadway once the overland route was blocked. It seems to me that it would ordinarily call for more than a minimum fine. Nevertheless, as has been pointed out by the appellant's counsel, the appellant has already served 14 days' imprisonment under the earlier sentence imposed by the learned Magistrate and the hardship which this has entailed should be brought into account. For that reason therefore I will impose a fine of $400 and a period of disqualification of 9 months cumulative upon that already imposed under the earlier convictions.
16 The result therefore is that this appeal should be allowed, that the sentence of imprisonment imposed by the learned Magistrate in the Court of Petty Sessions at Leonora on 10 December 2002 is quashed and that in lieu thereof it is ordered that the appellant pay a fine of $400. The order imposed by the learned Magistrate that the appellant should be disqualified from holding or obtaining a driver's licence for a period of 9 months cumulative on periods of suspension and disqualification under earlier convictions will stand.
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