BARRETT-LENNARD -v- BEMBRIDGE
[2015] WASC 353
•29 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BARRETT-LENNARD -v- BEMBRIDGE [2015] WASC 353
CORAM: BEECH J
HEARD: 18 SEPTEMBER 2015
DELIVERED : 29 SEPTEMBER 2015
FILE NO/S: SJA 1085 of 2014
BETWEEN: GRAHAM FRANCIS BARRETT-LENNARD
Appellant
AND
IAN GERALD WILLIAM BEMBRIDGE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V EDWARDS
File No :MH 2718 of 2014, MH 2719 of 2014, MH 2720 of 2014, MH 2721 of 2014
Catchwords:
Criminal law - Driving under suspension - Six previous offences - Sentence of 15 months' imprisonment suspended for 2 years - Whether manifestly excessive
Legislation:
Nil
Result:
Leave to appeal against conviction on all grounds refused
Appeal against conviction dismissed
Leave to appeal against sentence on ground of manifest excess granted
Category: D
Representation:
Counsel:
Appellant: In person
Respondent: Mr B D Nelson
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bell v Wesley [2007] WASC 264
British Railways Board v Pickin [1974] AC 765
Gable v Nardini [2010] WASC 321
Gargan v Commonwealth Bank of Australia [2004] FCA 641
Gargan v Director of Public Prosecutions [2004] NSWSC 10; (2004) 144 A Crim R 296
Gargan v Magistrate Dillon[2005] NSWSC 1106
Glew v Shire of Greenough [2006] WASCA 260
Logan v Kuser [2008] WASC 65
Mears v Holleman [2010] WASC 39
Nembousse v The State of Western Australia [2015] WASCA 68
Neves v Rogers [2013] WASC 440
Vince v Martyn [2013] WASC 60
Wilson v White [2007] WASCA 87
Yuksel v Marchesani [2011] WASC 57
BEECH J: On 18 September 2014, the appellant was convicted of the following offences:
(1)driving a vehicle with a numberplate not issued for that vehicle;
(2)driving an unlicensed vehicle;
(3)supplying a false name and address to police; and
(4)driving a vehicle while his authority to drive was suspended.
On 23 September 2014, the appellant received the following sentences, respectively, for those offences:
(1)a fine of $800;
(2)a fine of $400;
(3)a fine of $200; and
(4)15 months' imprisonment, suspended for a period of two years, and disqualification from holding or obtaining a motor vehicle driver's licence for 18 months, cumulative upon any existing disqualification.
The appellant seeks leave to appeal against his convictions and against the sentences imposed.
For the reasons that follow, I would refuse leave to appeal in respect of the appellant's appeal against conviction and grant leave in respect of ground 16 of the appellant's appeal against sentence.
The trial
The appellant appeared on his own behalf at the trial.
At the trial, the prosecution called two witnesses, both of whom were police officers. In cross‑examination, the appellant did not challenge the evidence of either of the police officers.[1] During the cross‑examination of the first police officer, the magistrate asked the appellant whether he disagreed with any of the witness' evidence, to which the appellant responded, 'No … everything else has been correct'.[2]
[1] ts 9, 18 ‑ 20, 15 September 2014.
[2] ts 9, 15 September 2014.
When the appellant gave evidence, he admitted that he had been driving the car and that he had given a false name and address to the police officers.[3]
[3] ts 21, 23, 15 September 2014.
The case was adjourned to 18 September 2014 to enable the appellant to do some research in relation to aspects of the Criminal Procedure Act 2004 (WA).
On 18 September 2014, the appellant made some submissions relating to the Criminal Procedure Act.[4] He raised a query as to whether the Magistrates Court sits under ch III of the Constitution.[5] The magistrate enquired of the appellant whether he wished to say anything about the evidence and the charges.[6] The appellant said that the reason he was driving on the day was because he was helping a Christian friend of his move house and that he would not have done so if he had known it was a long weekend.[7]
[4] ts 4 ‑ 7, 18 September 2014.
[5] ts 7, 18 September 2014.
[6] ts 8, 18 September 2014.
[7] ts 9, 18 September 2014.
The appellant did not make any submission on the question of whether the evidence established his guilt of the offences with which he was charged.
The decision of the magistrate
The magistrate commenced by dealing with the question relating to the Criminal Procedure Act that had been raised by the appellant.[8] As no ground of appeal challenges that aspect of the magistrate's decision, no more need be said about it.
[8] ts 10 ‑ 11, 18 September 2014.
For each of the charges, the magistrate correctly identified the elements of the offence. The magistrate referred to the unchallenged prosecution evidence, and the evidence of the appellant, in concluding, in relation to each charge, that each element had been proved.[9]
[9] ts 11 ‑ 14, 18 September 2014.
No ground of appeal challenges any of those conclusions.
The sentencing hearing
Following the conviction, the magistrate examined the appellant's criminal history. Her Honour pointed out that there were a number of convictions for similar offences and that, for some of them, suspended imprisonment orders had been imposed. In the circumstances, the magistrate said that an immediate term of imprisonment was a possibility and that the matter should be adjourned to enable the appellant to be represented.[10]
[10] ts 16 ‑ 17, 18 September 2014.
On 23 September 2014, counsel appeared for the appellant and made sentencing submissions.
It was accepted that the appellant had six previous offences of driving under suspension, as well as three offences of driving while under fine suspension.
Counsel referred to the appellant's strongly held belief in the divergence of the State‑imposed laws and the laws imposed by his religious beliefs.[11] Counsel submitted that the appellant claims that man‑made laws are irrelevant because the Bible has a passage in it which suggests that the laws imposed in the Bible are the only laws.[12]
[11] ts 3, 23 September 2014.
[12] ts 4, 23 September 2014.
Counsel submitted that notwithstanding there were two previous suspended imprisonment orders, given the gap in offending, at least for the offence of driving under suspension, the appellant should be given a further suspended imprisonment order.[13]
[13] ts 4 ‑ 5, 23 September 2014.
Sentencing remarks
In sentencing the appellant, the magistrate said as follows:[14]
You were convicted after trial of driving a vehicle with a false numberplate, driving an unlicensed vehicle, giving a false name and address to police officers and driving under suspension. The driving under suspension is for sentencing purposes, I think, your sixth or seventh conviction over the years. Your most recent prior conviction for driving under suspension, other than fine suspension, was in April 2005. So in terms of that offence, a period of just over nine years has elapsed.
I note that previous convictions for driving under suspension have attracted suspended imprisonment orders, and, in fact, in 2004 you were convicted of breaching a suspended imprisonment order, and you were fortunate on that occasion to have a further suspended imprisonment order imposed and a fine imposed rather than the term of imprisonment being triggered.
What concerns me with the current offence is that you were deceitful as far as the police were concerned. You were deceitful in that you gave a false name and address and deceitful in that you have used a false numberplate on a vehicle, and you were, I think, doing so in order and hopefully to evade police detection while you were apparently assisting a family to move home.
You've got significant outstanding fines, which I understand you are going to try and do something about, and you've filled in some paperwork to that effect. I have to determine, Mr Barrett‑Lennard, whether I ought to impose an immediate term of imprisonment on you for the driving under suspension or whether there is scope for me to suspend such term of imprisonment.
The only reasons that I can see to suspend it would be the passage of over nine years since your last conviction for this type of offence, not that you've been offence-free in that period, but you've not committed this particular offence in that last nine years and the fact that you have the care of your elderly mother as your responsibility.
After careful consideration, Mr Barrett‑Lennard, I have determined that I ought to suspend the term of imprisonment so you're sentenced to 15 months imprisonment, suspended for a period of two years. That means that if during the next two years you commit any offence for which you could be in prison - and that includes driving under fines suspension - then you are at risk of serving 15 months imprisonment for this offence, apart from any other penalty imposed for the offence that triggers the suspended imprisonment order.
In relation to the false numberplate, there is a fine of $800. For the unlicensed vehicle, a fine of $400 with the order that you pay a half annual licence fee of $186.70. For the false name and address, there is a fine of $200, court costs of $146.90. You are disqualified from holding or obtaining a drivers licence for a period of 18 months, and that's cumulative on any existing disqualification.
[14] ts 5 ‑ 6, 23 September 2014.
Grounds of appeal
The appellant's grounds of appeal are in the following terms:
1.The Magistrate refused to hear any evidence of God's / Bible law as vowed to be upheld by its supreme governor Queen Elizabeth II in her Coronation oath.
2.The 10 Commandments are explicit in who a Christian must worship and obey.
3.The parliament is subservient to the Governor and the Queen and must obey its superiors.
4.The Queen and her predecessors swore at their Coronations an oath to uphold the Laws of God and the Profession of the Gospels.
5.A Christian is compelled to obey the laws of his Master.
6.The WA Government, with its laws is unlawful and is a Rogue Government. It refused to obey Queen Victoria in setting up an Aboriginal Protection board and setting aside 1% of Consolidated Revenue for their protection. This was a condition of Queen Victoria granting Self Government in 1890. The reference to it has been removed unlawfully from the State Constitution 1889.
7.The WA Government is only a Colony of the UK as stated in the Constitution Act 1889 and the term has not been amended. This is the deed where it claims its authority to rule the people of Western Australia.
8.The WA Government has altered the office of the Governor. (Constitution Act 1889 S73 ss2a)
9.The members of the Legislative Council and the Legislative Assembly are composed of members not chosen directly by the people. (Constitution Act 1889 S73 ss2e)
10.The WA Government has knowingly disobeyed its own constitution by presenting bills to the Governor for assent by or in the name of the Queen. (Constitution Act 1889 S73 ss2f)
11.The WA Government has not ensured a concurrence of an absolute majority of the whole number of members of the Legislative Council and Legislative Assembly.
12.Apart from Daylight Saving Bills, no bill has been presented to be approved by the electors. (Constitution Act 1889 S73 ss2g)
13.The Constitution Act 1889 Section 73 ss 3, 4, 5, have been completely ignored.
14.Because of God's law in Deuteronomy chapter 4 v2 no Christian is compelled to hold a WA MDL, give accurate details of name and address, register a vehicle in WA or mount WA registration plates.
15.All Court and WA Police Service documents are served on victims of authority in envelopes marked OHMS meaning On Her Majesty's Service Yet neither upholds the oath of the Queen and God's Laws according to the King James Bible. The Magistrate Courts even refuse to entertain Canon Law.
At the hearing on 18 September 2015, the appellant was granted leave to add as ground 16, that the sentence imposed was manifestly excessive.
Grounds 1 - 5, 14 and 15
These grounds of appeal were developed in the appellant's written submissions of 16 September 2015. In oral submissions, the appellant stated that the only thing he wanted to add to his written submissions was that 'because I am a Christian, I need it clarified as to whether Bible law and God's law and the coronation oath overrule the parliamentary law of Western Australia'.[15] The position in that respect is crystal clear. None of the Bible, God's law or the coronation oath overrules the laws made by the Parliament of Western Australia. In England, that has been so since 1688. In what became the State of Western Australia, it has been so since the advent of the Parliament of Western Australia.
[15] Appeal ts 10.
In British Railways Board v Pickin[16] Lord Reid said as follows:
In earlier times many learned lawyers seemed to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.
This passage has been cited with approval in various courts in Australia.[17]
[16] British Railways Board v Pickin [1974] AC 765, 782.
[17] See, for example, Gargan v Director of Public Prosecutions [2004] NSWSC 10; (2004) 144 A Crim R 296 [66] (O'Keefe J); Gargan v Commonwealth Bank of Australia [2004] FCA 641 [4] ‑ [5] (Hely J); Gargan v Magistrate Dillon[2005] NSWSC 1106 [24] ‑ [25] (Barrett J).
Any moral principles derived from scripture do not detract from the sovereignty of Parliament.[18]
[18] Wilson v White [2007] WASCA 87 [32] (Buss JA, Wheeler & Pullin JJA agreeing).
Nothing in the coronation oath detracts from the supremacy of Parliament or from the efficacy of laws passed by Parliament.[19]
[19] Gargan v DPP [66]; Gargan v Magistrate Dillon [25] ‑ [26].
Grounds 1 to 5, 14 and 15 are entirely without merit; they have no reasonable prospects of success. I would refuse leave to appeal in respect of these grounds.
Grounds 6 - 13
None of these grounds is directed to the offences for which the appellant was convicted, or to his trial. These grounds contain a series of generalised assertions about 'the WA Government'. They appear to be directed towards a conclusion that no statute passed by the Parliament of Western Australia is valid. The basic constitutional structure of the States and the Commonwealth, and their respective legislative powers, were outlined by Wheeler JA in Glew v Shire of Greenough.[20] When viewed in light of this basic structure, the assertions in these grounds and the conclusion they invite are legally and constitutionally nonsensical.
[20] Glew v Shire of Greenough [2006] WASCA 260 [5] - [11] (Pullin & Buss JJA agreeing).
I would refuse leave to appeal in respect of these grounds.
Appeal against conviction - Conclusion
For the reasons I have given, none of the proposed grounds of appeal against conviction has any reasonable prospects of success. Consequently, leave to appeal in respect of each of them must be refused, and the appeal against conviction taken to be dismissed.
Insofar as grounds 1 ‑ 15 are asserted as grounds of appeal against sentence, none has any reasonable prospects of success. Leave to appeal must be refused on each ground.
Ground 16 - Manifest excess
In supplementary written submissions, the respondent stated that he accepted that the term of 15 months' imprisonment, suspended for a period of two years, imposed in respect of the offence of driving while under suspension, was manifestly excessive.[21] For the reasons that follow, I consider that concession was properly made.
[21] Respondent's supplementary submissions dated 14 September 2015 [2].
An allegation of manifest excess is an allegation of implied error. It must be shown that a sentence of the length imposed is plainly unjust or unreasonable, and could not have been reached in the proper exercise of the sentencing discretion.
In determining whether a sentence is manifestly excessive, 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 offending occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The range of sentences commonly imposed provides guidance but does not mark the boundaries of a court's sentencing discretion in a particular case. That range provides a yardstick for ensuring broad consistency in sentencing, bearing in mind that there is no one single correct sentence and there is scope for significant variation in relevant sentencing factors.[22]
[22] Nembousse v The State of Western Australia [2015] WASCA 68 [16] (McLure P, Mazza JA agreeing).
The maximum penalty for a subsequent offence of driving under suspension is 18 months imprisonment.[23]
[23] Road Traffic Act 1974 (WA) s 49(1)(c)(ii).
The penalties provided for driving under suspension are designed to be both punitive and to secure public safety on the roads.[24]
[24] Gable v Nardini [2010] WASC 321 [33] (EM Heenan J).
In a case such as this, of persistent offences of driving under suspension, there is a strong need for both general deterrence and personal deterrence.[25]
[25] Bell v Wesley [2007] WASC 264 [42] (Johnson J); Logan v Kuser [2008] WASC 65 [31] (Johnson J); Neves v Rogers [2013] WASC 440 [39].
Sentencing patterns from multiple offences of driving while under suspension have been examined in a number of cases. Caution is needed in considering the pattern of sentences. They should not be considered in a blunt mathematical way. Each case is sensitive to its own particular circumstances. Nevertheless, consideration of numerous previous cases reveals a relatively stable pattern of sentences for driving under suspension.
Convictions of driving while under suspension involving the fourth to eighth instance of such offending have commonly resulted in terms of imprisonment of between 4 and 9 months.[26] Thus, the sentence imposed in this case very substantially exceeded the top of the range of sentences commonly imposed.
[26] Mears v Holleman [2010] WASC 39 [24] (EM Heenan J); Gable v Nardini [34]; Yuksel v Marchesani [2011] WASC 57 [30] ‑ [31] (Jenkins J); Vince v Martyn [2013] WASC 60 [15] (Hall J); Neves [41].
The sentence imposed in this case was more than 80% of the maximum penalty.
Notwithstanding the appellant's persistent reoffending, and his refusal to accept that he is bound to comply with the Road Traffic Act 1974 (WA), I am persuaded that the length of the term imposed, 15 months, was manifestly excessive.
In this case, the period of suspension of the term of imprisonment was two years. That is the maximum possible period.[27] I am satisfied that the circumstances of this case could not justify this period of suspension. There is nothing to suggest that a long period of rehabilitation was necessary or appropriate in this case.
[27] Sentencing Act 1995 (WA), s 76(1).
No argument was addressed to the sentences imposed in respect of the offences other than that of driving while under suspension. Those sentences cannot be characterised as manifestly excessive.
For these reasons, I would grant leave to appeal in respect of ground 16.
Conclusion
For the reasons given, orders to the following effect should be made:
(1)leave to appeal on grounds 1 ‑ 15 be refused;
(2)the appeal against conviction be dismissed;
(3)leave to appeal against sentence on ground 16 be granted;
(4)the appeal be upheld on ground 16; and
(5)the sentence imposed in relation to the offence of driving while under suspension be varied by substituting an appropriate length for the 15 months imposed, and by substituting an appropriate period of suspension for the two years that was imposed.
I will hear further from the parties before imposing a varied sentence for the offence of driving while under suspension.
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