Auckram v Allen
[2016] WASC 107
•5 APRIL 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AUCKRAM -v- ALLEN [2016] WASC 107
CORAM: CORBOY J
HEARD: 12 FEBRUARY 2016
DELIVERED : 12 FEBRUARY 2016
PUBLISHED : 5 APRIL 2016
FILE NO/S: SJA 1008 of 2016
BETWEEN: DAVID LLOYD AUCKRAM
Appellant
AND
SANDRA JENETTE ALLEN
STUART ISLING LARSEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
File No :PE 105275 of 2014, MI 8708 of 2015, MI 8709 of 2015, MI 8710 of 2015, MI 8711 of 2015
Catchwords:
Criminal law - Appeal against sentence - Driving without authority - Possibility of deportation relevant to sentence to be imposed
Legislation:
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Sentencing Act 1995 (WA), s 80
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced to a total effective sentence of 6 months and 1 day imprisonment
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T Pontre
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Dauphin v The Queen [2002] WASCA 104
Dragon v The State of Western Australia [2008] WASCA 252
Furber v The Queen [2008] WASCA 233
Mooney v The State of Western Australia [2007] WASCA 54
Ponniah v The Queen [2011] WASCA 105
CORBOY J:
The appeal and the result
This was an appeal against sentence. The appellant was convicted of traffic offences, including driving without authority. The offences were committed in July 2015.
The appellant was subject to a suspended imprisonment order at the time that the July 2015 offences were committed. That order had been made in respect of an offence of driving without authority committed in 2014.
A total effective sentence of 12 months' imprisonment was imposed for the 2014 and 2015 driving without authority offences. In sentencing the appellant, the sentencing magistrate took into account the possibility that the appellant might be deported on completing his sentence. The respondents rightly conceded that this was a material error and that the appellant should be resentenced.
At the hearing of the appeal, I granted the appellant leave to appeal and allowed the appeal. I resentenced the appellant to a term of imprisonment of 6 months and a day. These are my reasons for making those orders.
The sentencing of the appellant
The appellant was convicted on his plea of charges that:
(a)on 28 July 2015, he contravened a red traffic control light, contrary to s 40(2)(a) of the Road Traffic Code 2000 (WA);
(b)on 28 July 2015, when requested by a police officer to supply his personal details, he gave false personal details, namely, his full name and date of birth, contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA);
(c)on 28 July 2015, he contravened a red traffic control light, contrary to s 40(2)(a) of the Road Traffic Code;
(d)on 28 July 2015, he drove a motor vehicle, namely a Ford Laser registration number 1EUG 979, on a road, namely Farrell Road, Midvale, whilst not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (RTA) (the 2015 Driving Offence).
The appellant was subject to a suspended imprisonment order at the time that those offences were committed. The order was made on 19 November 2014. The appellant was sentenced to 9 months' imprisonment, suspended for 2 years, for an offence committed against s 49(1)(a) and s 49(3)(c) RTA (the 2014 Driving Offence). The offence was committed on 29 September 2014.
The maximum penalty for the 2015 Driving Offence was a term of imprisonment. Accordingly, the appellant breached the suspended imprisonment order by committing that offence and became liable to be dealt with under s 80 of the Sentencing Act 1995 (WA) for the 2014 Driving Offence.
The appellant was sentenced on 7 October 2015 for the offences committed on 28 July 2015 and for the 2014 Driving Offence. He was fined for contravening the red traffic lights and for giving false personal details. He was sentenced to a term of imprisonment of 4 months for the 2015 Driving Offence. He was sentenced to a term of 8 months' imprisonment in respect of the 2014 Driving Offence. The terms of imprisonment were ordered to be served cumulatively so that the total effective sentence imposed was 12 months' imprisonment and fines of $800. The appellant was disqualified from holding or obtaining a driver's licence for a period of 9 months cumulative from 7 October 2015.
The appellant was born in New Zealand. He came to Australia in April 2005. His counsel submitted at the sentencing hearing that he was liable to be deported if he was sentenced to a term of imprisonment of more than 12 months. The sentencing magistrate queried that matter with counsel during sentencing submissions:
Mr Durand: Under the current immigration rules, if he is convicted over a period of more than 12 months, when he finishes there is a possibility he will be sent to Christmas Island. It's an unusual situation whereby the New Zealanders who have committed offences are then deemed to be like illegal immigrants or most (indistinct) they came here on a refugee boat. But be that as it may, he is in a relationship and his partner is in court today, and that's one of the reasons - the reason why he came back. He came back to face the music because he would - he has a relationship in Australia.
In formulating your penalty for the extra driving under suspension, if it's possible to bear in mind the limit of the 12 month which would send him to Christmas Island, I request that you consider that. You will notice from his record that he is not been done in for offences like reckless driving, drink driving. And his offences have just basically been driving under suspension without a driver's licence. If you are - I mean, when you do formulate the sentence that he has to follow, I would request that you also consider his eligibility for parole.
His Honour: Yes.
Mr Durand: For the time being I have nothing else to tell you, unless you have an specific questions you wish to ask of me.
His Honour: So if the sentence, you are saying, is more than 12 months ‑ ‑ ‑
Mr Durand: Yes.
His Honour: If it's 12 months then it won't have the impact you're suggesting.
Mr Durand: Yes, sir.
His Honour: Right. Yes, ok. Thank you, Mr Durand (ts 4 - 5).
In fact, the appellant now understands that he is liable to be deported on being sentenced, as he was, to a term of imprisonment of 12 months. That is not disputed by the respondents.
The appeal
The appellant (who was not represented) commenced an application for review of his sentence under s 36 of the Magistrates Court Act 2004 (WA). I ordered at a directions hearing held on 3 February 2016 that the appellant's originating motion be treated as an appeal against sentence pursuant to the Criminal Appeals Act 2004 (WA).
The respondents filed and served written submissions immediately prior to the directions hearing that were of considerable assistance in their careful analysis of the issues sought to be raised by the appellant. As has been noted, the respondents conceded that the sentencing magistrate had made a material error in sentencing the appellant - he had taken into account the possibility of the appellant being deported on completion of his sentence. The concession was rightly made. The possibility of deportation was a matter that was irrelevant to the sentence to be imposed: Dauphin v The Queen [2002] WASCA 104 [22] (Steytler P); Mooney v The State of Western Australia [2007] WASCA 54 [20] (Roberts‑Smith JA); Ponniah v The Queen [2011] WASCA 105 [47] ‑ [48] (Mazza JA). In Furber v The Queen [2008] WASCA 233, Murray AJA noted that it was permissible for a sentencing judge to consider the fact that offending had compromised the offender's immigration status as a mitigating factor, so long as the judge did not attempt to tailor the result of the sentencing process to give effect to a view about whether the appellant should be deported [31].
Accordingly, I granted leave to the appellant to amend his application to allege that the sentencing judge erred by having regard to the possibility that the appellant could be deported in determining the sentences to be imposed for the 2014 and 2015 Driving Offences. I also granted leave to appeal on that ground and allowed the appeal.
I should add that I would have permitted the appellant to amend his grounds of appeal to allege that the total effective sentence was manifestly excessive and I would have given leave to appeal on that ground if it had been necessary.
Resentencing
It is necessary to resentence the appellant for the 2014 and 2015 Driving Offences. It is not necessary to recount the circumstances in which the offences were committed - the facts alleged at the sentencing hearings were not disputed.
The appellant has a significant record of committing offences against the RTA and the Road Traffic Code. He has been convicted of driving an unlicensed vehicle (March 2008 and August 2008); exceeding the speed limit in a built‑up area (August 2008); driving a vehicle with a false number plate (August 2008); driving with a prescribed illicit drug in oral fluid (December 2011); and exceeding the speed limit in a speed zone (November 2014). In addition, he had five convictions for driving without authority prior to the 2014 Driving Offence. Plainly, personal and general deterrence are significant factors in sentencing him.
The appellant stated that he had been unemployed at the time that the suspended imprisonment order was made. He did not receive Centrelink benefits as he was a New Zealand citizen. He had been evicted from his accommodation and had no source of income. However, in December 2014, he met his now fiancée and he subsequently obtained employment in May 2015, working as a diesel fitter for a crane company operating in Muchea. He applied for an extraordinary driver's licence. In the interim, he was dependent on his fiancée to drive him to and from work. However, she was unable to do so on 28 July 2015, and he chose to drive rather than risk the possibility of losing his job or the income for the day's work.
The appellant's fiancée has two children from a prior relationship. The appellant states that he considers that he has acquired a family since meeting his fiancée, and that he is remorseful for his past offending. I accept that his expressions of remorse and insight are genuine having regard to the contents of the statement that he made to the court and the affidavit made by his fiancée.
Section 78 of the Sentencing Act provides that if a court convicts a person of an offence, the statutory penalty for which is, or includes, imprisonment and that offence was committed during a suspension period of suspended imprisonment imposed on the person in relation to another offence, the court must deal with the person under s 80. Section 80 provides that the court must deal with the person in one of four ways: it may make an order that the person serve the term or terms of imprisonment that were suspended; it may order the person to serve part of the term or terms of imprisonment that were suspended; it may substitute another suspension period of not more than 24 months for the suspension period originally set; and it may fine the person not more than $6,000 and make no order in respect of suspended imprisonment. However, a court must sentence the person to serve the term or terms of imprisonment that were suspended, unless it decides that it would be unjust to do so in view of all of the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed: s 80(3).
A term of imprisonment to be served as a result of an order made under s 80 cannot be backdated having regard to s 87 of the Sentencing Act: Dragon v The State of Western Australia [2008] WASCA 252 (dealing with the equivalent provision in s 84F of the Sentencing Act). However, the fact that an offender has spent time in custody for an offence for which suspended imprisonment had been previously imposed is a circumstance that arises after the order was made which may make it unjust to activate or fully activate the suspended term.
The appellant spent approximately 5 months in prison prior to the hearing of his appeal. It would be unjust in resentencing the appellant to fully activate his suspended imprisonment in those circumstances. It is also relevant that he has taken positive steps to rehabilitate himself since the order was made.
I concluded, having regard to the sentencing factors specified in s 6 of the Sentencing Act, that the appellant should be resentenced to:
(a)an immediate term of imprisonment of 2 months for the 2014 Driving Offence, commencing on the day that the appeal was allowed and the appellant was resentenced; and
(b)a further term of imprisonment of 4 months and a day for the 2015 Driving Offence, backdated to 7 October 2015 and to be served cumulatively on the term imposed for the 2014 Driving Offence.
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