Bell v Wesley

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BELL -v- WESLEY [2007] WASC 264

CORAM: JOHNSON J

HEARD: 12 JUNE 2007

DELIVERED : 9 NOVEMBER 2007

FILE NO/S: SJA 1003 of 2007

BETWEEN: ROBERT RANKIN BELL
Appellant
AND
CHRISTOPHER JAMES WESLEY
First Respondent
MARC WILLIAM O'NEILL
Second Respondent
AMITY HUDSON
Third Respondent
DWAYNE ANDRE FRANCIS SKEHAN
Fourth Respondent
JOHN GEOFFREY DORRINGTON
Fifth Respondent
LEE ANN SIMPSON
Sixth Respondent
JASON ROBERT DAINES
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E CAMPIONE
File No  :PH 1722 of 2003, PH 1520 of 2006, PH 1521 of 2006, PH 1522 of 2006, PH 1523 of 2006, PH 1524 of 2006, PH 1525 of 2006, PH 1526 of 2006, PH 1760 of 2006, PH 1847 of 2006, PH 2032 of 2006, PH 2033 of 2006, BM 677 of 2004

Catchwords:

Multiple driving under suspension charges - Reduction for pleas of guilty - Whether individual sentences excessive - Whether total sentence excessive - Application of totality principle - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49(3)(a)(ii)
Sentencing Act 1995 (WA), s 8(2), s 8(4), s 80(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Ms K T Davis
First Respondent           :     Ms L A Eddy
Second Respondent      :     Ms L A Eddy
Third Respondent          :     Ms L A Eddy
Fourth Respondent        :     Ms L A Eddy
Fifth Respondent           :     Ms L A Eddy
Sixth Respondent          :     Ms L A Eddy
Seventh Respondent      :     Ms L A Eddy

Solicitors:

Appellant:     Legal Aid WA
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent          :     State Solicitor for Western Australia
Fourth Respondent        :     State Solicitor for Western Australia
Fifth Respondent           :     State Solicitor for Western Australia
Sixth Respondent          :     State Solicitor for Western Australia
Seventh Respondent      :     State Solicitor for Western Australia

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

Anderson v Heath [2005] WASC 253
Anderson v Stilwell [2006] WASC 257
Bates v Wheatley [2000] WASCA 38
Calway v Wiebe (Unreported, WASC, Library No 990001, 13 January 1999)
Chivers v The State of Western Australia [2005] WASCA 97
Dearnley v Damon [2007] WASC 124
Dinsdale v The Queen (2000) 202 CLR 321
Findlay v The State of Western Australia [2007] WASC 61
Fullgrabe v The State of Western Australia [2006] WASCA 138
Griffiths v The Queen (1977) 137 CLR 293
H v The State of Western Australia [2006] WASCA 53
Hall v The Queen (1999) 21 WAR 364
Jarvis v The Queen (1993) 20 WAR 201
Karolides v The State of Western Australia [2006] WASCA 240
Kearney v Rinaudo [2007] WASC 104
Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998)
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASC 138
Mill v The Queen (1988) 166 CLR 59
Moody v French [2007] WASC 190
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Allpass (1993) 72 A Crim R 561
R v Buckman (1988) 47 SASR 303
R v Faithfull [2004] WASCA 39
R v Holcroft [1997] 2 Qd R 392
R v Marston (1993) 60 SASR 320
Rossiter v Francisty [2005] WASC 270
Ryder v Abbott [2007] WASC 41
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vlek v The Queen (Unreported, WASC, Library No 990153C, 29 March 1999)

JOHNSON J: The appellant, Robert Rankin Bell, having already amassed 10 prior convictions for driving under suspension, was convicted of a further four offences of driving under suspension and sentenced to a total term of 3 years imprisonment. The 3 year term of imprisonment included a sentence of 9 months' imprisonment imposed for an earlier offence of driving under suspension where the sentence had been suspended but was breached by the further offences and was ordered by the sentencing magistrate to be served.
The four further offences of driving under suspension were committed on separate occasions over a period of two years and formed part of a total of 13 offences for which the appellant was dealt with in the South Hedland Magistrates Court on 4 December 2006.
The appellant appeals against the sentence imposed by the magistrate on two grounds which raise the following issues:
1.The individual sentences were excessive;
2.The total sentence was manifestly excessive in that it did not adequately take into account the totality principle.
The following table sets out the offences, the statutory provision creating each offence, the dates on which the offences were committed and the sentences imposed. The number of each prosecution notice is also included in order to differentiate between the driving under suspension offences.

Prosecution Notice Number	Offence	Date of offence	Legislative provision	Penalty
PH 1722/03	Driving under suspension - Breach of suspended sentence	22/10/2003	Road Traffic Act 1974 s 49(1)(a), s 49(2)(a)(iii)	9 months' imprisonment
BM 677/04	Driving under suspension	14/03/04	Road Traffic Act 1974 S 49(1)(a), s 49(2)(a)(iii)	6 months' imprisonment (cumulative)
PH 1525/06	Driving under suspension	25/08/05	Road Traffic Act 1974 s 49(1)(a), s 49(2)(a)(iii)	10 months' imprisonment (cumulative)
PH 1526/06	Providing false name to police	25/08/05	Road Traffic Act 1974 s 53(1)(a)	$200 fine
PH 1524/06	Speeding in school zone	25/08/05	Road Traffic Code 2000 s 11(6)	$150 fine
PH 1522/06	Driving under suspension	29/08/05	Road Traffic Act 1974 s 49(1), s 49(2)(a)(iii)	11 months' imprisonment (cumulative)
PH 1523/06	Exceeding speed limit	29/08/05	Road Traffic Code 2000 s 11(3)	$100 fine
PH 1521/06	Providing false name to police	29/08/05	Road Traffic Act 1974 s 53(1)(a)	$400 fine
PH 1520/06	Possession of prohibited drug	26/10/05	Misuse of Drugs Act1981 s 6(2)	$300 fine
PH 1760/06	Driving under suspension	29/07/06	Road Traffic Act 1974 s 49(1), s 49(2)(a)(iii)	9 months' imprisonment (concurrent)
PH 1847/06	Aggravated common assault	19/07/2006	Criminal Code s 313(1)(a)	$1,000 fine
PH 2032/06	Breach of bail	18/08/06	Bail Act 1982 s 51(1)	2 months' imprisonment (concurrent)
PH 2033/06	Possession of prohibited drug	07/09/06	Misuse of Drugs Act 1981 s 6(2)	$600 fine

The facts

The first offence of driving under suspension was committed in the afternoon of 14 March 2004 in Broome. The appellant's explanation for the offence was that his girlfriend, who was a passenger in the car at the time of the offence, had not wanted to drive. It was this offence that breached the suspended sentence which had been imposed on 11 November 2003 for an earlier offence of driving under suspension.
The next group of offences were committed on 25 August 2005 in Kensington. The appellant's vehicle was detected by police radar to be travelling in excess of 21 km per hour above the speed limit in a school zone. When interviewed, the appellant provided to the police a false name, address and date of birth. It was not until the traffic infringement was issued to the person with the details provided by the appellant that the police became aware that this person was not the driver. The appellant was then charged with speeding, driving under suspension and providing a false name and address to police.
The next group of offences were committed on 29 August 2005 in Greenmount. The appellant was issued with a traffic infringement for driving a vehicle at 86 km per hour in a 70 km per hour speed zone. When requested to provide his name and address, he again gave the name, address and date of birth given on the previous occasion. A traffic infringement notice was issued but was not paid and the subsequent police inquiries revealed that it was the appellant who was the driver of the vehicle.
In relation to these two driving offences, the appellant's explanation was that he needed to drive to maintain his employment. He had not informed his employer that he did not have a licence.
The appellant was also sentenced for two offences of possessing a prohibited drug. The first offence was committed on 26 October 2005, when the police executed a search warrant at the appellant's premises in South Hedland and located a small clip‑seal bag containing approximately 0.2 g of cannabis which the appellant admitted was his. The appellant's home was again searched under warrant on 17 September 2006 and six plastic clip‑seal bags containing cannabis were located. The appellant admitted to purchasing the cannabis bags which had a total weight of approximately 6 g.
On 19 July 2006, the appellant committed the offence of aggravated common assault. That offence involved the appellant repeatedly hitting his de facto partner's 13‑year‑old son.
The fourth offence of driving under suspension occurred on 29 July 2006 in South Hedland. The appellant was stopped by police for a random breath test. It was ascertained at the time that he was subject to a court imposed licence disqualification. The appellant did not provide to the police an explanation for continuing to drive whilst under licence suspension. However, on appeal, it was said on his behalf that he had been taking his grandson to hospital. The grandson was prone to asthma and had begun wheezing. The explanation given for why the appellant's partner did not drive was that her licence was subject to a demerit point disqualification and the appellant did not want to worsen the situation with her driver's licence. According to the appellant, he did not think of calling an ambulance or a taxi. The appellant was on bail for the earlier offences when this offence was committed.
The final offence was the breach of a bail undertaking which had been entered into by the appellant on 21 July 2006. The undertaking required him to appear in court on 18 August 2006 but he failed to do so.
For convenience, I will refer to the four driving under suspension offences dealt with on 4 December 2006 as the first, second, third and fourth offences, notwithstanding the 10 previous offences committed by the appellant.
As noted above, the offence committed on 14 March 2004 breached a suspended sentence imposed for an offence of driving under licence suspension which was committed on 22 October 2003. During that offence the appellant attempted to evade police by driving into a nearby street.

Sentencing remarks

As can be seen from the table, the magistrate imposed terms of imprisonment for each of the offences of driving under suspension, including the 9 month term for the breach of the suspended sentence, as well as for the offence of breach of bail.
In ordering that the appellant immediately serve the 9 month term of imprisonment which had previously been suspended, the magistrate noted that she had been urged not to make that order on the basis of the time lapse since the offence was committed and the fact that the subsequent instances of driving under suspension arose from the appellant's attempts to 'get his life in order' by obtaining employment. The magistrate stated that she did take into account the time lapse but the number of offences and the appellant's continued wilful disobedience of the law did not incline her to the view that the appellant should benefit from the lapse of time. It was further noted that the appellant had also had the benefit of a prior suspended imprisonment order. This would appear to be a reference to an offence of driving under suspension committed in 1998 where the term of suspended imprisonment imposed was also breached.
Referring to s 80(3) of the Sentencing Act 1995 (WA), the magistrate specifically stated that she considered it just to order that the term of imprisonment, previously suspended, now be served.
The magistrate imposed increasing terms of imprisonment for the first three offences of driving under suspension. A term of 6 months' imprisonment was imposed for the first such offence, 10 months for the second and 11 months for the third, each to be served cumulatively on the 9 months' imprisonment for the offence where the term had previously been suspended. The penalty for the final offence was 9 months' imprisonment with the lower term reflecting the absence of the aggravating factors of speed and misleading the police. That term of imprisonment was ordered to be served concurrently, as was the 2 month term for breach of bail. The total term of imprisonment imposed by the magistrate was 36 months or 3 years with eligibility for parole.
It is apparent that the escalating nature of the sentences reflects the fact that the first offence dealt with by the magistrate had no other aggravating factors whereas the second and third offences were accompanied by driving in excess of the speed limit and attempting to avoid responsibility by providing a false name. Although the appellant was fined in relation to the additional charges, the surrounding circumstances are relevant to the sentence imposed for the driving offence and rendered it inappropriate to reduce the sentence imposed for the first offence. The appellant's conduct involved more than deliberately breaching the law by driving, it also involved a clear intention not to face any consequences which might result. It is in this sense that I have used the term "aggravating factors".
The increased term for the third offence is, in my view, consistent with the circumstances of the offence, including the aggravating factors, and also reflects the fact that it was committed only a few days after being apprehended for the second such offence.
The lesser term imposed for the fourth offence is consistent with the absence of the aggravating factors present in the two previous offences. However, it was committed whilst the appellant was on bail for the previous offences and, in my view, the term could have been greater to reflect that factor as well as the fact that this was a fourteenth conviction for the same offence.
In passing sentence the magistrate gave express consideration to whether the circumstances justified imprisonment which is a sentence of last resort. Specific reference was also made to the appellant's 'appalling record', his wilful defiance of the law and the fact that he was putting the community at risk by continuing to drive whilst under suspension. The 'appalling record' to which the magistrate referred included not only the 10 previous convictions for driving under suspension but also the fact that, at the time of the first offence the appellant was under a lifetime licence disqualification and subject to a suspended imprisonment order. It is also relevant to note that, in addition to the prior convictions for driving under suspension, the appellant has three prior convictions for driving without a driver's licence. It was for these reasons that the magistrate observed that 'we have well and truly reached a sentence of last resort in relation to those offences'.
In addressing the appellant's circumstances the magistrate noted that he was not someone who presented to the court having remained offence‑free for a period of time or who had a demonstrated track record of turning his life around and trying to remain offence‑free. The appellant was described by the magistrate as someone who led a 'somewhat chaotic' lifestyle and was in the grip of substance abuse for which he must bear the consequences. With respect to the proposition put on behalf of the appellant that he was driving in order to keep his employment, the magistrate noted that it was not submitted on the appellant's behalf that he had either applied for or been refused an extraordinary licence.
The Magistrate referred to the need to protect the community and for both general and specific deterrence. Despite her observation that 'none of these driving under suspension when looked at individually constitute the worst case of driving of its kind', the magistrate concluded that a term of immediate imprisonment was the only appropriate sentence given the appellant's 'wilful defiance of the law'.

Whether individual sentences excessive

On behalf of the appellant it was submitted that the individual sentences imposed were excessive when compared to sentences imposed on other offenders for similar offences in substantially similar circumstances. In addition to the comparison with other sentences, two specific issues were relied upon in support of the submission that the individual sentences were excessive:
(1)The sentences were toward the upper end of the available sentencing range despite the fact that the magistrate had conceded that the offences were not of the worst kind;
(2)Insufficient reduction was given for the fact that the appellant had entered pleas of guilty to the charges.
The maximum penalty for a subsequent offence of driving under licence suspension is 18 months' imprisonment: Road Traffic Act 1974 (WA), s 49(3)(a)(ii). However, at the time the sentences were passed, the effective maximum term of imprisonment available was 12 months because of the one‑third reduction required by cl 2 of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
In support of the submission that the sentences imposed on the appellant were excessive when compared with sentences passed in other cases, counsel for the appellant relied on a number of authorities involving offenders with substantial records of conviction for driving under suspension. One such authority is the decision in Mason v Morrison [2004] WASCA 181 where a suspended sentence of 12 months' imprisonment was set aside and a sentence of 9 months' imprisonment imposed for both a twelfth conviction of driving under suspension and a tenth offence of driving under the influence of alcohol, the two terms to be served concurrently.
The commonality between the appellant's case and Mason v Morrison is limited to the nature of the offence and the fact that the offender had a substantial record of prior conviction for the offence of driving under suspension. Other factors render it inappropriate for use as a guide in determining whether the sentences imposed in the appellant's case for four separate offences manifest error. The State was the appellant in Mason v Morrison and hence the principles applicable to Crown appeals applied: see Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ). This fact was expressly referred to by Miller J in his reasons: Mason v Morrison [20]. Sentences imposed on a successful Crown appeal are commonly less than those considered appropriate at first instance: Dinsdale v The Queen (2000) 202 CLR 321 [62]; R v Allpass (1993) 72 A Crim R 561. Further, the two offences were part of the same driving incident and could have been considered part of a single transaction justifying a concurrent penalty: see McDonald v White [2007] WASC 138 [131]; R v Faithfull [2004] WASCA 39 [28] (McLure J). Alternatively, the total criminality could have been considered to be less than if the two offences were committed on separate occasions, thereby resulting in an adjustment of the sentence.
In the present case the magistrate was dealing with offences which were separated in time and place. It is also the case that the court in Mason v Morrison considered there were mitigating circumstances, in particular the respondent's apparent reform over the three months since his arrest. For these reasons I do not consider that the decision in Mason v Morrison identifies a 'tariff' for a number of separate driving offences committed by an offender with an extensive history of the same or similar offences. At best, Mason v Morrison indicates that a term of 9 months' imprisonment is within an appropriate sentencing range for a further offence of driving under suspension committed by an offender with a significant number of prior convictions for the same offence. Considered in that light, the decision would support some, if not all, of the sentences imposed in this case.

The decision of Hasluck J in Kearney v Rinaudo [2007] WASC 104 was also relied upon by the appellant. In that case the appellant pleaded guilty to two separate offences of driving under suspension, the second of which was committed whilst the appellant was on a pre‑sentence order for the first offence. The appellant had six prior convictions for driving under suspension. The appellant received 12 months' imprisonment for each of the two offences, to be served cumulatively, bringing the total term to 2 years.
His Honour considered that previously decided cases suggested that the imposition of cumulative 12 months' terms giving rise to an aggregate term of 2 years was excessive. The appropriate disposition was considered to be 8 months for each offence. However, Hasluck J still considered it appropriate to accumulate the two sentences: Kearney v Rinaudo [44].
The authorities referred to by his Honour were Findlay v The State of Western Australia [2007] WASC 61 Anderson v Stilwell [2006] WASC 257; Rossiter v Francisty [2005] WASC 270 and Anderson v Heath [2005] WASC 253. Having considered these cases, Hasluck J concluded that the decision Findlay and in Anderson suggested that the imposition of cumulative 12 month terms was excessive: Kearney v Rinaudo [44]. His Honour did not clarify which of the Anderson cases he was relying upon.
In Findlay v State of Western Australia the appellant, who had 11 prior convictions for driving under suspension, was apprehended on two separate occasions for driving under suspension and under the influence of alcohol. He pleaded guilty to each charge and was sentenced to 12 months' imprisonment for each of the four offences, being the maximum term that could lawfully be imposed. The terms imposed for the offences of driving under the influence were ordered to be served concurrently with their respective charges of driving under suspension. However, the magistrate ordered that the terms of imprisonment for the two offences of driving under suspension be served cumulatively bringing the total term of imprisonment to 2 years. Despite the absence of any discount for the pleas of guilty, Martin CJ was not persuaded that the magistrate fell into error. In reaching that conclusion, the Chief Justice emphasised the appellant's 'appalling record of offences of exactly the same kind' [4], the fact that the early pleas of guilty reflected nothing more than a recognition of the inevitable outcome and did not provide any evidence of remorse or contrition [34], and also the appellant's conspicuous disregard for the safety of others: [23].
In Anderson v Stilwell the appellate court held that it was appropriate for terms of 8 months for each of the offender's twelfth to fourteenth convictions for driving under suspension, to be served cumulatively, where the offences were separated in time and did not fall within the 'one transaction rule' and where each successive offence was committed whilst the appellant was on bail. However, Blaxell J held that there were strongly mitigating circumstances in relation to the fourteenth conviction and reduced the term to 4 months. Those circumstances do not arise in this case. Again, the term of imprisonment is not so far from a number of the sentences in the appellant's case to suggest error by the magistrate. Further, the decision supports an accumulation of sentences for offences separated in time.
In Rossiter v Francisty, an authority also relied upon by the appellant in this case, the appellant was convicted of his eighth, ninth and tenth driving under suspension offences, committed on separate occasions and on the ninth and tenth occasion committed together with other offences such as driving an unlicensed vehicle, driving a vehicle with false number plates and giving false personal details. The appellant was sentenced to 8 months' imprisonment for the tenth offence which was dealt with first in time and then 6 months and 1 day for each of the eighth and ninth offences to be served concurrently with each other but cumulatively on the first sentence of 8 months. The total period of imprisonment imposed was 14 months.
On the hearing of the appeal McKechnie J was provided by the respondent's counsel with a table, attached as a schedule to the judgment, setting out various single judge and Full Court decisions and the sentences imposed for offences of driving under suspension and other offences dealt with at the same time. His Honour considered the table to identify 'the range of sentences customarily imposed' and concluded that 'it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant' [8]. The sentence substituted by McKechnie J was a total of 8 months' imprisonment reached by making the sentences for the eighth and ninth offences concurrent with the term of 8 months' imposed for the tenth offence.
In Moody v French [2007] WASC 190 [82] I made the following comment:
As to the proposition that sentences of 14 months for driving under suspension are a rarity, even for serial offenders, I have on other occasions commented adversely on the usefulness of schedules of this type because, in my view, they present a snapshot of cases that does not necessarily reflect the sentences regularly being imposed at first instance and can be misleading. Most importantly, however, they rarely contain sufficient background information to obtain an informed understanding of the reasons behind the particular sentence imposed: see McDonald v White [2007] WASC 138 per Johnson J at [121] ‑ [125].
In McDonald v White I also questioned the merits of carrying out such an exercise when an appeal against sentence is heard. In that case I considered the decision of Le Miere J in Anderson v Heath [9] where his Honour was provided with a table of cases and concluded that they established a range of 2 ‑ 6 months' imprisonment as an appropriate disposition in most cases for the offence of driving under suspension under the sentencing regime which applied before the transitional provisions came into effect. On the hearing of the appeal in McDonald v White the court was also provided with a table of various sentencing authorities. However, the results did not reflect a range consistent with that identified by Le Miere J in Anderson v Heath. Prior to the changes to the Sentencing Act 1995, where an offender has a significant number of previous convictions for driving under suspension, the sentences imposed ranged between 6 months to 12 months, although there was one sentence of 4 months and one of 5 months. The cases heard on appeal after the transitional provisions came into effect covered an even wider range of penalties of anything between 4 and 12 months, although some terms were suspended: [123]. In my view, the major problem with tables of this type is that they do not adequately identify the circumstances in which the offences were committed and the personal circumstances of the accused which can significantly affect the sentencing outcome. As Miller J observed in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42]:
The cases referred to by counsel for the applicant … do no more than confirm the cautionary observations of Kennedy J in Allen v The Queen that although examples of cases provide some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care.
It is for these reasons that I must respectfully disagree with McKechnie J and Le Miere J concerning the 'tariffs' identified by their Honours based on the tables of authorities provided to them.
It can be seen from this brief analysis of the authorities that I do not consider that the decision in Kearney v Rinaudo is authority for the proposition that total sentences of 2 years' imprisonment or more for multiple offences of driving under suspension is excessive. Nor, in my view, is it authority for the proposition that 12 month terms are excessive for such offences. Indeed the decision in Findlay v The State of Western Australia refutes that proposition. It must be kept in mind that the appellant in Kearney v Rinaudo had six prior convictions and not the 10 prior convictions of this appellant, and was given the maximum term for his seventh and eighth conviction rather than the 11 months imposed for this appellant's thirteenth offence. It is also the case that there are other distinguishing factors including the fact that this appellant had previously been granted a suspended sentence for the same offence and was on bail for three other offences of driving under suspension when his final offence was committed.
On behalf of the appellant it was said that the authorities indicate that a sentence of about 8 months for offences committed in somewhat similar circumstance is an appropriate penalty and would have been an appropriate penalty in the appellant's case. I do not accept that the authorities referred to above identify a sentence of 8 months as the only appropriate sentence for repeat offences of driving under suspension where the offender has a significant record for the same offences. In my view, the authorities indicate that sentences of 8, 9 and even 12 months' imprisonment may be appropriate for offences of driving under suspension where the offender has multiple prior convictions. In any particular case, where the sentence falls within that range, or whether a lesser term may be imposed, will depend on the particular circumstances.
Further, the authorities do not suggest that the sentence would remain unchanged if an offender with prior convictions for driving under suspension were to commit not one, but a number of further such offences over a considerable period of time. Defiance of the law is fundamental to the commission of the offence of driving under suspension. Because of that factor and the need to protect the public, the primary emphasis when imposing sentence for driving under suspension must be specific and general deterrence: Dearnley v Damon [2007] WASC 124 [49]; Calway v Wiebe (Unreported, WASC, Library No 990001, 13 January 1999) 10 ‑ 11 (Miller J); Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998) 16 ‑ 17 (Miller J). Consequently, at some point, and whether that point has been reached will depend on all the circumstances, it will be necessary to impose sentences increasingly higher than those previously imposed and even, where appropriate, the maximum.
Counsel for the appellant attempted to identify error in the fact that the sentences imposed are towards the upper end of the range, despite the magistrate's comment that the offences were not of the worst kind. In my view, there is no substance in this submission. The nature of the offence is only one of the factors that determines sentence. Where an offender with a significant number of previous convictions continues to commit the same offence, not once, but on a number of occasions, ultimately it is the necessity to deter and punish which outweighs any mitigating factors and determines the sentence. Where there is a comparatively low maximum sentence, imposing the maximum term of imprisonment, or a term towards the upper end of the range, may well be justified even if the circumstances of the offence, taken alone, are not the worst of their kind. Such a result is even more likely to occur where there are other aggravating factors such as the fact that the offence occurred whilst the offender was on bail or whilst subject to a suspended term of imprisonment for the same offence. I consider that it is apparent from the comments made by the magistrate in passing sentence that it was exactly these issues which she had in mind when she imposed on the appellant the sentences from which he now appeals.
In support of the submission that the individual sentences were excessive, the appellant also relies on the fact that none of the offences were combined with charges of driving under the influence of alcohol. Although, as I have noted, it is open to the court to treat a single act of driving under suspension and whilst intoxicated as part of one transaction and therefore impose concurrent terms of imprisonment, the more usual approach is to accumulate the terms imposed for each offence. However, even if the 'one transaction rule' is applied, the sentence imposed would have to be at a level which reflects the total criminality of the offender's conduct. In this case, despite the absence of the "aggravating factor" of being under the influence of alcohol, there are other "aggravating factors" with respect to some of the offences. Further, as I have noted, the fact that the offences are a continuation of a long line of the same offences both increases the criminality of the conduct and necessitates a deterrent penalty. In those circumstances, there is, in my view, no significance to the fact that the offences did not also involve driving under the influence.
When consideration is given to the matters that I have outlined above, imposing increasing sentences of 6, 10 and 11 months' imprisonment for the appellant's eleventh, twelfth and thirteenth convictions for driving under suspension offences and 9 months for the fourteenth conviction which did not have the more serious circumstances of the two prior offences, I am not persuaded that the individual sentences are inconsistent with authority or excessive for offences of that type.
One further issue raised by the appellant impacts on the individual sentences imposed; the fact that the appellant pleaded guilty. Counsel for the appellant submitted that by entering pleas of guilty the appellant has demonstrated that he is willing to take responsibility for his conduct and should have received a reduction in sentence of 20% to 35%. Whilst it is difficult to argue that the sentences of 6 and 9 months could not reflect a discount for the pleas of guilty, the sentences of 10 and 11 months could not include a discount in that range.
Section 8(2) of the Sentencing Act 1995 provides that a plea of guilty is a mitigating factor and the earlier in the proceedings the plea is made, the greater the mitigation. Under s 8(4), if the court reduces the sentence because of a mitigating factor, the court must state that fact in open court. However, in H v The State of Western Australia [2006] WASCA 53 [10] Steytler P noted that the fact that the requirement of s 8(4) has been overlooked, as opposed to the existence of the plea itself, will not be a reason for overturning the sentence imposed if it is obvious that a reduction had in fact been made on account of the plea. To that I would add the rider, 'if indeed it was appropriate in the circumstances to make a reduction': see Findlay v The State of Western Australia [32].
The pleas of guilty to the second driving under suspension charge and the related charges were made before the magistrate on 30 November 2006. At that time the magistrate expressly observed that there were pleas of guilty in relation to all the other matters. The appellant was remanded for sentence to 4 December 2006. Although no reference was made by the magistrate in her sentencing comments to the fact that each charge was the subject of a plea of guilty, I am not prepared to accept that this was a factor that she had overlooked. Within a period of four days it is highly unlikely, in my view, that the magistrate would have been unable to recall whether the sentencing process followed a trial or pleas of guilty. Further, the prosecution notices record the fact that pleas of guilty were made.
It is also the case that the magistrate made no reference to reducing the sentences imposed as a result of the pleas of guilty. As I noted in Moody v French [24], there is a line of authority which suggests that, even where a magistrate does not expressly state that he or she is giving a discount for a plea of guilty, it can be inferred that the magistrate was aware that it was a plea of guilty and took it into account: Findlay v The State of Western Australia [32]; Bates v Wheatley [2000] WASCA 38 [33], [36]. It is also the case that it is only the fact that the sentence is to be reduced by reason of a mitigating factor which the magistrate is obliged to mention, as is clear from the terms of s 8(4) of the Sentencing Act 1995: see Fullgrabe v The State of Western Australia [2006] WASCA 138 [28] ‑ [29] (Martin CJ).
It is important to note that the figure of 20% ‑ 30%, identified by counsel for the appellant, is the range of reduction for an early plea of guilty: see Ryder v Abbott [2007] WASC 41 [34] (Templeman J); H v The State of Western Australia per Steytler P. In Chivers v The State of Western Australia [2005] WASCA 97 [17], Steytler P noted that the earlier the plea is made, the greater the mitigation. It is also the case that the amount of the reduction is discretionary and sentencing judges and magistrates must be accorded a wide measure of latitude in determining that amount which will be respected by appellate courts: see H v The State of Western Australia [9] (Steytler P); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336.
In relation to the first offence of driving under suspension, the appellant's first court appearance was on 22 March 2004 when it appears from the complaint that he entered an endorsed plea of guilty. The matter was adjourned to 5 April 2004 and an order made for a summons to issue requiring the appellant to attend for sentencing. However, the appellant failed to appear. It is unclear whether a bench warrant was issued on that date; however, the matter was further adjourned to 19 April 2004. On that date the appellant again failed to appear and a bench warrant was issued. The appellant appeared on 13 May 2004 and the mattered was remanded to 28 May 2004. The appellant again failed to appear on the adjourned date. The next entry on the complaint is for 8 September 2006 at which time it is apparent that the matter was adjourned in order to be dealt with at the same time as the later charges of driving under suspension.
The second offence was before the court for the first time on 30 June 2006. A plea of not guilty was made by the appellant to the charge of driving under suspension as well as to the related charges and maintained until 30 November 2006 when the plea was changed to guilty. As Steytler P noted in H v The State of Western Australia [9] the reduction for a plea of guilty may be less, and even substantially less than somewhere in the range of 20% ‑ 35% in the case of a late plea and an absence of any real remorse.
The third offence was also before the court on 30 June 2006 and adjourned to 21 July 2006 at which time the appellant pleaded guilty. On that date the appellant was remanded to appear on 18 August 2006 but failed to do so. It is this failure to appear which was the subject of the breach of bail charge.
As to the fourth offence, the first appearance date was 1 August 2006 on which day the appellant did appear and was remanded to 21 August 2006 when he again appeared. Having failed to appear on 18 August in relation to the third offence, it is unclear whether the appellant's appearance on 21 August was voluntary or under bench warrant. There was a further adjournment before the appellant pleaded guilty on 14 September 2006.
It is therefore the case that, whilst in relation to some of the charges the appellant did plead guilty at an early or relatively early stage, he delayed the imposition of penalty by failing to appear. In relation to the second offence, the plea was not an early plea of guilty. In regard to the second and third offences, the appellant attempted to avoid even the possibility of being dealt with for those offences, or for the first offence, by lying about his identity. In my view, the appellant's conduct was entirely inconsistent with remorse or an acceptance of responsibility for his actions.

It is not in all cases that a discount must be given for a plea of guilty. In Findlay v The State of Western Australia [34] Martin CJ made the following observation:
Secondly, while s 8(2) provides that a plea of guilty is a mitigating factor, and the cases provide guidance as to the extent of the discount usually given, whether the mitigating factor will in fact result in a reduction of sentence, and the extent of that reduction, will depend critically upon all the facts and circumstances of the particular case and cannot be constrained by hard and fast rules.
In particular, Martin CJ considered that, where an offender is caught red handed and has no possible avenue of defence, an early plea of guilty may simply reflect an offender's recognition of the inevitable, rather than show remorse or contrition. In such circumstances an early plea of guilty may not reveal any particular insight or perception of the significance of the offender's misconduct: [34].
With respect to all four offences of driving under suspension, the appellant was stopped by police whilst driving a motor vehicle. Prior to the first of the offences the appellant's licence had been disqualified for life. There was clearly no viable defence open to the appellant which no doubt was a contributing factor to his decision to provide a false name on the occasion of two of the offences. In my view, the pleas of guilty simply reflected the inevitability of the outcome.
The proposition put by the appellant's counsel that, by entering a plea of guilty the appellant indicated his willingness to take responsibility for the offences, is entirely inconsistent with his behaviour in failing to appear. At best it can be said that by appearing on 30 November 2006 the appellant finally took some responsibility for his actions. Doing so at that late point in time would justify little, if any, reduction in sentence.
When considering the circumstances of the offences, it is apparent that there are no mitigating factors other than the pleas of guilty. The explanations provided for the offences of driving under suspension do not, in my view, provide mitigation for the appellant's conduct. Even the explanation for the fourth offence is far from compelling. If the appellant's grandson was sufficiently ill that the appellant, whose licence had been disqualified for life, felt the need to drive, it is difficult to accept that he 'didn't think' to call an ambulance or even a taxi.
The other circumstances of the appellant's conduct are far from mitigatory. The appellant had 10 prior convictions for the same offence, was subject to a life disqualification when these offences were committed, was subject to a suspended sentence for the same offence when the first offence was committed and was on bail when the fourth offence was committed.
Taking all these factors into account, the magistrate would have been justified in making only a small reduction to reflect the appellant's pleas of guilty in relation to some of the offences and little if any reduction in relation to the offence where the plea was late. I have already noted that where the available sentencing range is relatively limited and the offender has previously committed numerous offences of the relevant type and has continued to commit these offences, increasingly higher and even maximum sentences can be justified because specific and general deterrence become the overriding factors in such cases: see Findlay v The State of Western Australia [32]. In light of these conclusions and the absence of any other mitigating factors I am not persuaded that the magistrate failed to take into account or adequately address the fact that the appellant pleaded guilty.
The only sentence which I have not addressed to this point is the 9 months' imprisonment imposed for the offence of driving under suspension which was subject to a suspended term of imprisonment which was breached by the commission of the first offence.
At the hearing of the appeal counsel for the respondent referred to the fact that the sentence of 9 months' imprisonment for the breach of suspended sentence had not been appealed. Certainly the appellant's written submissions raise no issues specifically relevant to this particular sentence. The respondent's written submissions state that 'there is no ground of appeal that this suspended sentence should not have been triggered pursuant to section 80(1)(a) of the Sentencing Act'.
However, the court's records reveal that an amended appeal notice was filed on 3 May 2007 adding the offence in complaint PH 1722/03 to the list of offences included in the appeal against sentence. In accordance with a notice of consent filed by the respondent, Blaxell J granted leave to appeal and granted the extension of time to appeal in relation to the sentence imposed for the offence in complaint PH 1722/03.
As the 9 month sentence for the earlier offence of driving under suspension where the sentence had been suspended formed part of the total sentence imposed, it may be that the breach of the suspended sentence was included because of the ground of appeal alleging that the total sentence was excessive. Nevertheless, as it has been included I will briefly consider whether it was appropriate to order that the sentence be served. In doing so I propose to address the submissions made to the magistrate as to why the sentence should not now be served. As noted above, those submissions were to the effect that there had been a substantial time lapse since the offence was committed and also that the appellant had obtained employment and was trying to 'get his life in order'.
On the issue of the time lapse, the offence which breached the suspended sentence was committed only five months after the order for suspension was made. According to the complaint for that offence, the appellant's first appearance on the breaching charge was on 22 March 2004 when he entered an endorsed plea of guilty. The matter was adjourned and an order made for a summons to issue requiring the appellant to attend for sentencing. The appellant failed to appear. It is unclear whether a bench warrant was issued on this first occasion when the appellant was required to appear but did not do so. The matter was further adjourned but the appellant again failed to appear and a bench warrant was issued. The appellant appeared on 13 May 2004 and the mattered was remanded to a later date. The appellant again failed to appear on the adjourned date. The next entry on the complaint is for 8 September 2006 at which time it is apparent that the matter was adjourned in order to be dealt with at the same time as the later charges. The resolution of those charges was delayed by the appellant's act of providing a false name. It is apparent that the appellant was substantially if not completely responsible for the significant time lapse between the breach of the suspended sentence and the date on which he was ordered to serve that sentence. In my view, the lapse in time was not a sufficient reason not to order the suspended term to be served.
Contrary to the submission made that the appellant's attempts to turn his life around by obtaining employment was a basis for continuing the order for suspension, the offence which breached the order was not one of those where the appellant's explanation was that he needed to drive for his employment. The explanation given for the breaching offence was that the appellant's girlfriend, who was a passenger in the car at the time of the offence, had not wanted to drive. Further, at the time the appellant was sentenced he was unemployed and although he was engaged in a programme to deal with his drug addiction he had not at that time overcome his addiction. In my view, this submission was properly rejected as a basis for taking an option other than ordering the sentence previously imposed be served.
It was also a significant factor, as the magistrate noted, that the appellant had previously had the benefit of a suspended sentence for an offence of driving under suspension but that sentence had also been breached. I share the magistrate's view that this factor, coupled with the number of offences committed by the appellant and his continued wilful disobedience of the law, clearly justified ordering that the sentence of imprisonment be served.
In Dearnley v Damon [53] ‑ [54] I observed that, whilst the courts have acknowledged that there are circumstances in which it is proper not to make an order that a suspended term of imprisonment be served, it has been emphasised that the legislative policy which emerges from s 80 of the Sentencing Act 1995, and similar provisions in other jurisdictions, is that, prima facie, where a suspended sentence has been breached by re‑offending, a court ought to order that the suspended term of imprisonment be served: see Hall v The Queen (1999) 21 WAR 364 [34] (Murray J); R v Holcroft [1997] 2 Qd R 392, 397; R v Buckman (1988) 47 SASR 303, 304. In R v Marston (1993) 60 SASR 320, 322 King CJ adopted this principle and added:
It is of great importance that the courts adhere to that principle. Departure from it by the nonrevocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.
In my view the principle has added force where, as in this case, the breaching offence is the same as the offence for which the suspended sentence was imposed. I can see no error in the magistrate's decision to order that the appellant serve the term of 9 months which had previously been suspended.

Whether the total sentence was manifestly excessive

The appellant's submission is that the total sentence imposed was manifestly excessive and did not fairly and justly reflect the criminality of the appellant's conduct. In support of that proposition the appellant relied substantially on the decision in Rossiter v Francisty and in Anderson v Heath. These authorities are said to support the approach, when applying the totality principle in the context of multiple driving offences such as driving under suspension, of setting the appropriate sentence for each offence then ordering each sentence to be served concurrently. I have earlier in these reasons indicated my reasons for declining to follow the views expressed in Rossiter v Francisty and in Anderson v Heath on sentencing offenders with a significant record of driving under suspension offences for multiple charges of the same offence.
As I have noted above, in Kearney v Rinaudo Hasluck J considered it appropriate to accumulate the sentences for two further offences of driving under suspension which were committed on separate occasions. In Anderson v Stilwell the appellate court held that it was appropriate for terms of 8 months for each of the offender's twelfth to fourteenth convictions for driving under suspension to be served cumulatively where the offences were separated in time. In Findlay v State of Western Australia cumulative sentences were upheld notwithstanding that the maximum penalty had been imposed for each of two offences of driving under suspension.
It is also the case that the 'one transaction rule' did not apply in this case. Each offence was completely separate from the others and did not form part of a discrete period of offending. In accordance with principle the sentence for each offence would properly be ordered to be served cumulatively.
It is clear, therefore, that the appellant's proposition that the appropriate approach to sentencing in cases of multiple offences of this type is to set the sentence for each offence then order each sentence to be served concurrently, is inconsistent with principle and authority. However, in applying the totality principle, it may be necessary to order that some terms of imprisonment be served concurrently notwithstanding that those terms would ordinarily be ordered to be served cumulatively.
Counsel for the appellant also submitted that the cumulative terms of imprisonment did not adequately consider the substantially increased severity of a total sentence of 3 years. The basis of this proposition is the decision of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207 where his Honour stated that the reductions commonly made pursuant to the totality principle reflect the fact that the severity of a term of imprisonment increases exponentially as it increases in length.
In Vlek v The Queen (Unreported, WASC, Library No 990153C, 29 March 1999) 6, Anderson J noted that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences: see also Mill v The Queen (1988) 166 CLR 59. Anderson J referred to the totality principle in the following terms:
The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole.
In Karolides v The State of Western Australia [2006] WASCA 240 [5] McLure JA observed that there are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of the totality principle is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release.
In my view, a sentence of 3 years' imprisonment for five separate offences of driving under suspension and an offence of breaching bail, cannot be said to be 'crushing'. Indeed, it is apparent from the appellant's submissions that reliance is placed only on the first limb of the totality principle. The issue then is whether the total sentence bears a proper relationship to the overall criminality involved in all the offences. In addressing this issue the circumstances of the offences play a significant role.
At the time the first of the offences before the court was committed the appellant was subject to a suspended sentence for driving under suspension. He was also subject to a lifetime disqualification and had already accumulated 10 prior convictions for the same offence and convictions for a number of similar offences. He had also previously breached a suspended term of imprisonment for the same offence. Within a mere five months of being given the benefit of a suspended term of imprisonment the appellant committed the first of the driving under suspension offences. Having been apprehended for the second offence, within five days he committed the third offence. When the fourth offence was committed the appellant was on bail for the previous offences. As I have indicated, the appellant's conduct is made more serious by the fact that, on two separate occasions, he attempted to avoid the consequences of his deliberate flouting of the law by providing a false name to the police. Indeed, the appellant even attempted to avoid apprehension when he committed the earlier offence for which he was given a suspended sentence by driving into a nearby street to evade the police. It is also clear from the explanations offered to the police and to the court that the appellant wilfully disregards the restrictions imposed on him by the court when it is convenient for him to do so. I consider that even this brief summary indicates the serious level of criminality involved in the appellant's offending.
Counsel for the appellant suggested that the criminality of the appellant's conduct was reduced by the fact that he had not been convicted of the first charge when he committed the second charge, nor for the second charge when he committed the third, and not for the third when he committed the fourth offence of driving under suspension. I cannot accept that proposition. The appellant was apprehended by police on each occasion and was charged. As I have already mentioned, having been disqualified for life, the appellant had no viable defence to any of the charges. In my view, the appellant was well aware that he would ultimately accrue a further conviction for each of the offences and in those circumstances I can see no impact on the overall criminality of his conduct that he had not actually been convicted of the previous offence before he committed the next one. In any event, the appellant was largely responsible for the fact that the convictions were not recorded before the next offence was committed by failing to answer his bail on a number of occasions and by providing a false name to the police. Further, in one case the time span between the two offences was insufficient for the prior matter to have been dealt with by the court.
It is clear from the magistrate's sentencing remarks that she carefully considered all relevant factors when passing sentence, including the appellant's previous and continuing flagrant disregard for his court ordered licence disqualification, the seriousness of the offence of driving under suspension and the danger to the public involved in the appellant's actions. She was well aware of the need to impose a sentence which would operate as a deterrent to the appellant and to others who might be minded to ignore restrictions placed on them by the court. It is also the case that the magistrate expressly had regard to the totality principle when imposing penalty. It was for that reason that the sentences for the fourth offence of driving under suspension and the breach of bail offence, both of which would normally be subject to a cumulative sentence, were ordered to be served concurrently.
It is also relevant to consider that, because the appellant had re‑offended, he was required to serve the 9 month term of imprisonment for an offence which was not even part of the criminality of the four offences before the court. That this term formed part of the sentences imposed on 4 December 2006 was attributable to the appellant's own conduct. Looked at in that way, because the sentence for the fourth offence was ordered to be served concurrently, the four offences before the magistrate attracted a term of just over 2 years 6 months' imprisonment.
Having considered all these matters, I am not persuaded that the total sentence imposed on the appellant was excessive, nor that insufficient account was taken of the totality principle. Although the total term of imprisonment was substantial, in my view, it did indeed reflect the overall criminality of the appellant's conduct.
Finally, there is a matter which has become evident in the course of the appeal. In these reasons I have referred to a sentence of 6 months imposed for the first offence of driving under suspension committed on 14 March 2004 and set out in complaint number BM 677/04. However, the sentence recorded on the complaint is one of 9 months.
The transcript reveals that for the first offence of driving under suspension the magistrate imposed a term of 6 months. Further, at the conclusion of sentencing, the magistrate stated the total term of imprisonment to be 36 months. A total of 30 months' imprisonment had been imposed for the breach of suspended sentence and the three other driving under suspension offences. Therefore, to reach the total term of imprisonment the sentence to be accumulated for the remaining offence must be 6 months. These two factors are, in my view, sufficient to rectify the error in the complaint.
However, the conclusion that the actual sentence imposed was 6 months is also supported by the magistrate's sentencing remarks that this offence of driving under suspension was considered to be less serious than the two driving offences committed with the accompanying offences of providing a false name to police and speeding, for which the appellant was sentenced to 10 months and 11 months' imprisonment. The magistrate said:
At the time he was subject to life disqualification and a suspended imprisonment order. Apart from that, however, there was nothing else that aggravated the offence. I do consider that a term of imprisonment is warranted and given that he was on a suspended sentence at the time the options in relation to that are fairly narrow in any event.

These comments indicate that the magistrate was not intending to impose a sentence at the higher end of the scale. It is also the case that the lower term is consistent with being the first of the four driving under suspension offences attracting the lowest in an increasing level of sentences imposed on the appellant for continuing to wilfully flout the law by continuing to drive under suspension.
The respondent concedes that the recorded sentence should be one of 6 months' imprisonment.
It is therefore clear that the recording of 9 months' imprisonment on the complaint is incorrect, and the sentence imposed by the magistrate was, in fact, 6 months' imprisonment. I will hear from the parties as to whether it is necessary for this court to take any action to rectify the error.
For the reasons set out above, and subject to hearing from the parties with respect to the error in recording the sentence relating to complaint number BM 677/04, I would dismiss the appeal.

[2007] WASC 264

11/08/2007