Batt v Wigger
[2017] WASC 300
•12 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BATT -v- WIGGER [2017] WASC 300
CORAM: MARTINO J
HEARD: 12 OCTOBER 2017
DELIVERED : 12 OCTOBER 2017
FILE NO/S: SJA 1053 of 2017
BETWEEN: LORRAINE TERESA BATT
Appellant
AND
FRANCIS WIGGER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P G MALONE
File No :FR 3968 of 2017, FR 3969 of 2017
Catchwords:
Criminal law - Appeal against term of imprisonment to be served - Driving under the influence of alcohol - Whether term should have been suspended
Legislation:
Road Traffic Act 1974 (WA)
Result:
Extension of time to appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr T E Pontre
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Casotti v Pickering [2013] WASC 174
Chan (1989) 38 A Crim R 337
Fogg v The State of Western Australia [2011] WASCA 11
Garlett v Balic [2016] WASC 172
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v Pymm [2015] WASC 449
Wilson v Robertson [2014] WASC 421
Wilson v The State of Western Australia [2010] WASCA 82
MARTINO J: The appellant, Ms Batt, seeks an extension of time to appeal and leave to appeal against an effective sentence of 7 months' imprisonment to be served imposed upon her on 25 July 2017. The hearing of the appeal has been expedited by an urgent appeal order made on 22 September 2017.
Extension of time to appeal
The notice of appeal was filed 20 days late. The circumstances of the delay are set out in an affidavit of the appellant's solicitor dated 11 September 2017. Legal Aid Western Australia endeavoured to visit Ms Batt in custody after the sentence was imposed but were not successful. Ms Batt asked to see the prison visiting service to discuss an unrelated issue and this visit took place on 28 August 2017. At that visit Ms Batt confirmed instructions to appeal and completed an application for Legal Aid. Having regard to the length of the delay, the fact that Ms Batt was in custody, the fact that Legal Aid endeavoured to see Ms Batt but did not do so until after the time to appeal had expired and the fact that the appeal was lodged two weeks after Legal Aid saw Ms Batt I am satisfied that it is appropriate to extend the time to appeal.
The ground of appeal
Ms Batt was sentenced to 6 months' imprisonment for the offence of driving under suspension contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) and to 7 months' imprisonment for the offence of driving while under the influence of alcohol contrary to s 63(1)(a) of the Road Traffic Act. Those sentences were ordered to be served concurrently.
The sole ground of appeal is that the learned sentencing Magistrate erred in law in failing to suspend the sentence of imprisonment. The ground does not point to any express error, but relies upon the implication of error from the sentence imposed.
Leave to appeal can only be granted on that ground if it has a reasonable prospect of success in the sense that it has a rational and logical prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The facts of the offending
The facts of the offending were admitted at the sentencing hearing. At 7.00 pm on Friday 7 April 2017 Ms Batt drove a Kia motor vehicle on South Street near Murdoch Drive, Murdoch into the back of a trailer attached to a Mitsubishi Pajero which was stopped at a red traffic light. The accident caused significant damage to both the Mitsubishi and the trailer. The intersection of South Street and Murdoch Drive is a large four‑way intersection. It was well lit at the time of the accident. Traffic was of medium density. Police officers attended the scene. A breath test was taken. Ms Batt's blood alcohol content was calculated to be 0.161% at the time she was driving. Ms Batt had been permanently disqualified from driving in 2010.
Ms Batt's record
At the time of the offending Ms Batt was 49 years old. The offending was her second offence of driving under suspension. She had committed the previous offence in 2016. The offence of driving under the influence of alcohol was her fourth offence, previous offences having been committed in 1999, 2003 and 2010. She had also committed an offence of driving with a blood alcohol content in excess of 0.08% in 1987 but as that offence was more than 20 years ago it was not a previous offence for the purposes of s 63 of the Road Traffic Act by reason of s 107 of the Road Traffic (Administration) Act 2008 (WA).
The sentencing hearing
The appellant was represented by duty counsel at the sentencing hearing. The learned sentencing Magistrate had a pre‑sentence opportunity programme (POP) report and a letter from Ms Batt's psychiatrist.
In his plea in mitigation counsel pointed to the following matters:
•Ms Batt's pleas of guilty had been entered at her first appearance;
•At the time of the sentencing hearing Ms Batt was an inpatient at Perth Clinic, having been admitted on 17 June 2017;
•The POP report before his Honour was positive and demonstrated that Ms Batt had engaged fully at her counselling appointments and been abstinent from alcohol for ten weeks;
•The POP report referred to three traumatic incidents in the last 12 months, namely the death of Ms Batt's father, the accident on 7 April 2017 and a family violence incident earlier in the year;
•The family violence incident was an incident in which she had been punched by her partner which resulted in her leaving him;
•On the day of the accident Ms Batt was in the throes of separation from her partner;
•Ms Batt made the 'stupid decision' to drive to her partner's house to seek some form of validation from him;
•Ms Batt had been medicated with Antabuse medication;
•Ms Batt had been seeing her psychiatrist since 2013;
•It appeared that the driver of the Mitsubishi was not hurt in the accident;
•Ms Batt suffered a couple of fractured ribs and a fracture to her sternum in the accident;
•Ms Batt was a general and paediatric nurse with 30 years' experience;
•It had been six years since Ms Batt last worked in nursing;
•Ms Batt was diagnosed with major depression and anxiety. She used to drink to medicate herself but she was now receiving the proper therapy and treatment.
The sentencing reasons
The learned Magistrate gave full sentencing reasons in which he addressed the relevant issues. His Honour referred to the pleas of guilty, for which he reduced the sentences by 20%. His Honour accurately summarised the facts of the offending and its consequences.
He referred to the matters personal to Ms Batt, including the injuries suffered by her in the accident, her remorse, her contribution to the community in nursing, her difficulties with alcohol, her previous convictions for driving under the influence of alcohol and the treatment she was receiving.
Ms Batt does not contend that his Honour made any express error. Her counsel concedes that the terms of imprisonment were appropriate, but contends that error is to be implied by reason of the failure to suspend the terms.
Consideration of the ground of appeal
Implied error is established when, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: Wilson v The State of Western Australia [2010] WASCA 82 at [2]. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently: Garlett v Balic [2016] WASC 172 Beech J at [15].
A sentencing judicial officer must not order imprisonment to be served unless satisfied that suspension of the term of imprisonment is not appropriate: s 39(3) Sentencing Act 1995 (WA). Whether suspension of a sentence of imprisonment is appropriate involves the exercise of a discretion. In borderline cases different types of sentence may be reasonably open. In such a case a decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error. In an appeal against the failure to suspend a term of imprisonment on the ground of implied error it is for the appellant to satisfy the court that the sentencing judicial officer's decision that suspension was not appropriate was a conclusion that was not reasonably open: Fogg v The State of Western Australia [2011] WASCA 11 McLure P at [5] ‑ [10]; Wilson v Robertson [2014] WASC 421 Beech J at [23] ‑ [24].
To determine if a sentence is excessive it is necessary to have regard to the maximum penalty for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.
The maximum penalty for a fourth offence of driving under the influence of alcohol is 18 months' imprisonment.
Sentences imposed for the offence of driving under the influence of alcohol were been reviewed by Hall J in Casotti v Pickering [2013] WASC 174, by Beech J in Wilson v Robertson and by Tottle J in Wilson v Pymm [2015] WASC 449. As has been said in those cases it is difficult to determine the range of sentences customarily imposed for offences of this type.
In Casotti v Pickering the offender was sentenced to 6 months and 1 day's imprisonment to be served for her third offence of driving under the influence of alcohol. It had been approximately four and a half years since her previous offence. Her appeal was allowed, Hall J deciding that the Magistrate had erred and that a suspended term of imprisonment would have been appropriate. His Honour considered that the fact that there were significant gaps in the offender’s record was significant. Her record did not suggest that the offender was a person who acted in defiance of the law or who was incapable of responding to deterrent penalties. The circumstances of the case at the time of the appeal precluded Hall J imposing a suspended term of imprisonment or an intensive supervision order. His Honour imposed a community based order.
In Wilson v Robertson Beech J allowed an appeal by an offender who had been sentenced to 7 months' imprisonment for her third offence of driving under the influence of alcohol. Her previous offence had been committed 6 months before the offence for which she was sentenced. She had relapsed into alcohol abuse following a miscarriage. Beech J held that it was an error not to suspend the term. As it was not possible for Beech J to impose a suspended term of imprisonment his Honour imposed an intensive supervision order.
In Wilson v Pymm the offender was sentenced to 8 months' imprisonment for the offence of driving under the influence of alcohol. He had three relevant prior convictions, the most recent being approximately three years prior to the offence for which he was sentenced. He also had five convictions for driving under suspension. Tottle J dismissed the appeal.
In my view it cannot be said that the sentence imposed on Ms Batt was outside the range of sentences customarily imposed having regard to those cases and the cases referred in them.
Ms Batt was driving with a blood alcohol content of 0.161%. That is a high level. Driving with that level of alcohol creates a risk of injury or death to other road users. Ms Batt was not driving in an isolated environment but at 7.00 pm at a four‑way intersection in medium density traffic. It was fortunate that the driver of the Mitsubishi was not injured. However, the accident involved considerable impact, causing significant damage to the Mitsubishi and trailer and Ms Batt's injuries of fractured ribs and sternum. The offending was serious.
Ms Batt was aged 49 at the time of the offending. She entered early pleas of guilty. She had suffered the loss of her father and domestic violence before the offending. Since the offending she had taken steps to receive appropriate treatment, with which she was engaging fully. She was suffering major depression and anxiety and had admitted herself to hospital. She had suffered as a result of her offending by the injuries she had sustained.
Conclusion
This was a borderline case. It had been approximately six and a half years since her previous offence of driving under the influence of alcohol. Prior to that her previous offence of driving under the influence of alcohol had occurred seven years earlier and the first offence was four and a half years before the second offence. Ms Batt had therefore demonstrated that there were periods in which she could abstain from alcohol.
Ms Batt had not been sentenced to a suspended term of imprisonment when sentenced for her previous offences. As I have said she had entered early pleas of guilty, was remorseful, had suffered traumatic incidents, had taken positive steps towards rehabilitation including admission to hospital and had suffered as a result of the offending.
However the offending involved obvious risk to other road users. The offence was Ms Batt's fourth offence of driving under the influence of alcohol. She was driving although she had been permanently disqualified from holding a driver's licence. She had committed an offence of driving while permanently disqualified approximately 13 months previously.
I am not satisfied that the learned sentencing Magistrate's decision that suspension was not appropriate was a conclusion that was not reasonably open. I am not satisfied that his Honour exercised his discretion in a way that was not open to him.
The ground of appeal has a rational and logical prospect of success but the appeal does not succeed.
I grant an extension of time to appeal and leave to appeal but dismiss the appeal.
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