Bacich v Illich - [2000] WASCA 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BACICH -v- ILLICH [2000] WASCA 133

CORAM: MILLER J

HEARD: 5 MAY 2000

DELIVERED : 10 MAY 2000

FILE NO/S: SJA 1060 of 2000

BETWEEN: JERRY ANTHONY BACICH
Appellant
AND
PAUL STEPHEN ILLICH
Respondent

Catchwords:

Appeal - Driving offence - Fourth and fifth convictions for driving under suspension - Sentence of imprisonment - Whether sentence of imprisonment should have been suspended - Relevance of earlier convictions for sixth and seventh offences of driving under suspension - Turns on own facts

Legislation:

Road Traffic Act 1974, s 49(1)(a), s 49(2)

Sentencing Act 1995, s 39

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms A C Johnson

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Dempsey v R, unreported; SCt of WA; Library No 7623; 24 April 1989
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Marshall v Spent [2000] WASCA 114
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Police v Cadd & Ors (1997) 69 SASR 150
Stewart v Waghorn [1999] WASCA 150
The Queen v Minchinton, unreported; SCt of WA; Library No 980684; 27 November 1998

Case(s) also cited:

Flintoff v R, unreported; SCt of WA; Library No 980388; 2 June 1998
Lowndes v The Queen (1999) 73 ALJR 1007
Thompson v The Queen (1992) 8 WAR 387

MILLER J: The appellant was charged in the Court of Petty Sessions, Perth that on 29 September 1999 at City Beach and on 1 October 1999 at Nedlands he drove a motor vehicle whilst under suspension of licence (Road Traffic Act 1974, s 49(1)(a) and s 49(2).) He had previously been convicted for the same offences on 24 June and 29 July 1998 and again on 1 February 1999. The result was that he was before the Court on what were to be fourth and fifth convictions (although treated by the learned Magistrate as effectively a fourth conviction). On 18 November 1999 the appellant had been brought before another Magistrate in the Court of Petty Sessions at Perth for what were his sixth and seventh instances of driving whilst under suspension, but which were dealt with as fourth and fifth offences. On that occasion the appellant was sentenced to 4 months' imprisonment but the sentence was suspended for a period of 18 months. That penalty was imposed in relation to each of the two convictions.
The result was that when the appellant came before the learned Magistrate on his fourth and fifth convictions he was a person who was serving a suspended sentence of imprisonment but he was also a person who, since the offences of 29 September and 1 October 1999, had been shown to have committed further offences on 8 and 9 November 1999. Whilst these offences could not be taken into account in the sentencing process to aggravate the circumstances of the fourth and fifth offences, the learned Magistrate was entitled to have regard to them when considering the appellant's conduct subsequent to the offences with which he was dealing. In fact, it worked in two ways. The learned Magistrate was obliged to take into account the favourable circumstances of the appellant's compliance with the suspended sentence imposed in November 1999, but she was also entitled to observe that after the offences with which she was dealing, the appellant had very shortly in time committed a further two offences: see Dempsey v R, unreported; SCt of WA; Library No 7623; 24 April 1989.
When the matter came before Ms Bennett‑Borlase SM on 24 March 2000 he was represented by counsel who frankly accepted that a sentence of imprisonment to be served immediately was a realistic sentencing option. However, it was submitted that there were sufficient mitigating circumstances to justify suspension of any sentence of imprisonment which should be imposed. Reference was made to the appellant's position in the public service and the adverse consequences that a conviction would have; reference was made to a psychologist's report which suggested that the appellant had a number of unresolved grief issues in relation to his mother's death, so that he required ongoing counselling; and it was put that the appellant was the sole carer for an aged grandmother whom he had promised his mother to look after.
The learned Magistrate called for a pre‑sentence report which was delivered orally to her. The officer who compiled that report told the court that the appellant was "not a criminal type" who had resolved that he would not continue to offend although his record indicated past continuance of offences for driving under suspension. However, it was pointed out that he had served 4 months of a suspended sentence without committing any offence, although conceding that it was difficult to conclude "anything too firm at this stage" in relation to future offending. Reference was made to psychological counselling which the appellant had received and from which it was hoped that the appellant had derived some benefit. It was also pointed out that the appellant who had been the owner of an expensive imported American sportscar had sold that vehicle and thus would be removed from the temptation from driving further whilst under suspension.
The learned Magistrate thereupon proceeded to deal with the matter. She pointed out that the appellant was a man in his 30s and must have been warned by the court in the past of the dangers of continuing to drive under suspension. Notwithstanding this, he was before the court for a fourth time and was to be dealt with without reference to convictions which he had received on 18 November 1999 for sixth and seventh offences of driving under suspension. The learned Magistrate considered there were no mitigating factors which had been put before her as to the appellant's driving and considered that a deterrent sentence was called for. She accepted that the appellant had been the carer for his grandmother which she described as "a valiant effort" but observed that information before the court revealed that he had been away from Perth at varying periods of time and so could not have had the sole and exclusive care of his grandmother. This observation appears to have been entirely correct, because a reference from the appellant's employer indicates that the appellant spends time in the country areas of the State.
The learned Magistrate held the appellant's driving to have constituted a blatant disregard of court orders and took the view that a suspended sentence of imprisonment was inappropriate. Because the offences constituted a fourth offence, it was considered that authority supported the imposition of a gaol term. Gaol sentences of 4 months and 5 months respectively were thus imposed to be served concurrently.
On 31 March I granted the appellant leave to appeal from the decision of the learned Magistrate, the grounds being as follows:
"(a)The learned magistrate erred in law by not suspending the terms of imprisonment which she imposed upon the applicant on the above mentioned complaints;
(b)The learned magistrate imposed sentences which were manifestly excessive on the applicant in relation to the above mentioned complaints."
At the hearing of the appeal counsel for the appellant argued effectively that the case should be put into a special category because of the unusual chain of events which led to a second Magistrate imposing a suspended term of imprisonment for the fifth and sixth convictions, that sentence being imposed prior to Ms Bennett‑Borlase's imposition of the gaol term. It was pointed out that since being placed on the suspended sentence on 18 November the appellant had not committed any further offence; had sold his motor vehicle implying an acceptance of and compliance with the orders disqualifying him from driving; of his own initiative sought professional assistance from a clinical psychologist to address his problems of prior offending; paid all fines imposed for prior traffic offences; maintained his employment with the WA Drug Abuse Strategy Office and taken care of his dependant grandmother.
The appellant further contended that there were a number of errors made by the learned Magistrate in the sentencing process. It was put that when the learned Magistrate found there to have been no mitigating factors, she was in error because the appellant had offered an explanation for his driving and this had been also touched upon in the psychologist's report. In point of fact, the appellant had told the learned Magistrate that he had driven because he felt pressured to do so by a friend who did not have a vehicle. The psychologist suggested that the appellant's judgment had become impaired, leading to his driving. For my own part I find no demonstrated error in the learned Magistrate's conclusion that no mitigating factors had been put before her in relation to the reason for driving. It was then contended that the learned Magistrate erred in concluding that the care of his grandmother was not the appellant's sole concern. It was put that the unchallenged submissions and references put before the court reveal that the appellant was and is the grandmother's sole carer and support. Whilst this may have been so, the learned Magistrate's observation that the appellant was away from Perth from time to time was in accordance with his employer's reference. I therefore find no error in her conclusions in that regard. It was further suggested that the learned Magistrate had given no obvious discount for the plea of guilty, but it seems apparent to me that the learned Magistrate appreciated in every respect that she had before her pleas of guilty and the appellant was dealt with on that basis. The learned Magistrate was also criticised for observing that the appellant "just wants to drive his car" but I find difficulty in concluding that there was anything erroneous in this conclusion. Likewise the learned Magistrate's conclusion that there had been a "blatant disregard of court orders" was, in my view, in accordance with the evidence before her.
Counsel for the appellant submitted that the regime of s 39(2) and (3) of the Sentencing Act 1995 required the learned Magistrate to satisfy herself that suspension of the prison terms she was about to impose was inappropriate. It was suggested that in the case of repeat offenders the effect of a suspended sentence is a "last warning" or "last chance" before the offender will be sentenced to a term of imprisonment servable immediately and that the appellant was denied this "last chance". It is true that offenders may be given a "last chance" by way of suspension of sentence and I touched upon this in Stewart v Waghorn [1999] WASCA 150 where (at [22]) I respectfully adopted the observations of Doyle CJ in Police v Cadd & Ors (1997) 69 SASR 150, where (at 167 ‑ 168) his Honour said that the circumstances of an offender must always be considered and may warrant the giving of a last chance by means of a suspended sentence. However, I do not read the provisions of s 39 of the Sentencing Act to require a court to give such a last chance. It is quite true, as submitted by counsel for the appellant, that there is no onus upon the appellant to demonstrate exceptional circumstances for which a suspended sentence should be imposed, and I respectfully agree in that respect with the observations of Murray J in The Queen v Minchinton, unreported; SCt of WA; Library No 980684; 27 November 1998, where his Honour said (at 3):
"I wish only to reiterate what I said in GP at 234 that, beyond the general statements of principle as to the circumstances in which it will be appropriate to suspend imprisonment, and having regard to the way in which the relevant provisions of the Sentencing Act are expressed, there is 'no warrant for the conclusion that an additional element should be incorporated with respect to any given class or type of offence which would make the use of a suspended sentence a more exceptional, rare or unusual disposition than in respect of a different type of offence, given that the conditions warranting suspension are made out. The Act is constructed in such a way as to negate the view that in any particular class of case suspension of imprisonment will only be justified in exceptional circumstances."
Counsel for the respondent argued that the offence of driving whilst under suspension or whilst disqualified from holding a licence is a very serious offence and evidences a disregard for the normal rules of society. It was submitted that it is an offence which ordinarily warrants imprisonment and where the offences are second or third offences of this type it will be difficult to dispose of the matter otherwise than by a term of imprisonment: Police v Cadd (supra); Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998; Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999; O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999.
In several recently decided cases I have dealt with the problem facing Magistrates dealing with repeat offenders for driving whilst under suspension. Apart from the cases to which counsel for the respondent referred, I have also decided Stewart v Waghorn (supra) and, most recently, Marshall v Spent [2000] WASCA 114. In those cases I have consistently adhered to the statement of principle I expressed in Krakouer v Durka (supra) to the following effect:
What was said in Liddington is entirely consistent with the view of the majority of the Full Court of the Supreme Court of South Australia in Cadd (supra) and, in particular, the views of Doyle CJ, to which I have referred. Moreover, the views expressed by the majority in Cadd reflect the consistent line of authority in this Court, to which I earlier referred. That is, the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of genuine emergency; cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and "reasons militating in favour of an exercise of mercy".
Whilst I appreciate that in the present case the appellant's position is somewhat unusual by reason of the decision of the Magistrate on 18 November 1999 to place him on suspended sentences for his sixth and seventh offences, I am of the view that the appellant was exceedingly fortunate in being dealt with by the learned Magistrate in that way. Notwithstanding the fact that since the imposition of the suspended sentences the appellant had not offended, the fact remains that when Ms Bennett‑Borlase SM came to deal with the appellant on 24 March 2000, she was entirely justified in imposing the sentences of imprisonment she did. Consistent with authority to which I have referred, it would have required exceptional circumstances for her to have suspended the sentences and this she declined to do. In my view, no error has been demonstrated in that decision. For these reasons I dismissed this appeal at the conclusion of the hearing on 5 May.