Bloomfield v The State of Western Australia
[2017] WASCA 10
•18 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLOOMFIELD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 10
CORAM: BUSS P
MAZZA JA
CORBOY J
HEARD: 1 AUGUST 2016
DELIVERED : 18 JANUARY 2017
FILE NO/S: CACR 198 of 2015
BETWEEN: BRAD EDWARD BLOOMFIELD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 694 of 2015
Catchwords:
Criminal law - Appeal against sentence - Threat to kill - Stealing - Property Damage - Possessing a weapon - Possessing a prohibited drug and drug paraphernalia - Assault - Driving offences - Second and subsequent offences for periods of licence disqualification - Whether total effective sentence infringed first limb of the totality principle or was manifestly excessive
Legislation:
Bail Act 1982 (WA), s 51(1)
Criminal Code (WA), s 68(1), s 313(1)(a), s 338B(a), s 378, s 444(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6)
Road Traffic Act 1974 (WA), s 49(1), s 49(3), s 53(2A), s 60(1)
Weapons Act 1999 (WA), s 6(1)(b)
Result:
Leave to amend grounds of appeal
Ground 1 of the appeal allowed and appeal otherwise dismissed
Period of licence suspension varied
Category: B
Representation:
Counsel:
Appellant: Mr S H King
Respondent: Mr B M Murray
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54
Carter v Denham [1984] WAR 123
Douglas v Ferguson [2012] WASC 207
Garlett v The State of Western Australia [2016] WASCA 80
Giglia v The State of Western Australia [2010] WASCA 9
Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203
KIP v The State of Western Australia [2013] WASCA 71
Le v The State of Western Australia [2014] WASCA 120
McKenzie v The State of Western Australia [2015] WASCA 163
Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81
Quigley v The State of Western Australia [2013] WASCA 9
R v Holder [1983] 3 NSWLR 245
Rehu v The State of Western Australia [No 2] [2013] WASCA 50
Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434
Roffey v The State of Western Australia [2007] WASCA 246
Tela v The State of Western Australia [No 2] [2014] WASCA 103
The State of Western Australia v Cheeseman [2011] WASCA 15
Wilson v The State of Western Australia [2010] WASCA 82
BUSS P: I agree with Corboy J.
MAZZA JA: I agree with Corboy J.
CORBOY J: On 14 August 2015, the appellant was convicted on his plea of five counts on an indictment and 12 charges that had been pending in the Magistrates Court and which were dealt with pursuant to s 32 of the Sentencing Act 1995 (WA). The total effective sentence imposed was 4 years and 9 months' immediate imprisonment.
The individual sentences that were imposed for the indicted offences were:
Count
Offence
Maximum Penalty
Sentence
Count 1
On 16 November 2014 at Greenfields made a threat to unlawfully kill Tanya Joanne Bloomfield (Criminal Code (WA), s 338B(a))
7 years' imprisonment
2 years' imprisonment
Count 2
On the same date and at the same place, was armed with a dangerous weapon, namely a knife, in circumstances likely to cause fear to Tanya Joanne Bloomfield (Criminal Code, s 68(1))
7 years' imprisonment
12 months' imprisonment concurrent
Count 3
On the same date and at the same place, wilfully and unlawfully damaged a bedroom door, kitchen window and a driveway gate (Criminal Code, s 444(1)(b))
10 years' imprisonment
9 months' imprisonment concurrent
Count 4
On the same date and at the same place, stole a motor vehicle the property of Tanya Joanne Bloomfield (Criminal Code, s 371A and s 378)
7 years' imprisonment
12 months' imprisonment concurrent
Count 5
On the same date and at the same place, stole cash the property of Tanya Joanne Bloomfield (Criminal Code, s 378)
7 years' imprisonment
9 months' imprisonment concurrent
The sentences imposed for the s 32 offences were:
Charge
Offence
Maximum Penalty
Sentence
FR10346/2014
On 15 October 2014 at Hamilton Hill, possessed a prohibited weapon, namely knuckle-dusters (Weapons Act 1999 (WA), s 6(1)(b))
3 years' imprisonment and a fine of $36,000
4 months' imprisonment concurrent
FR10347/2014
On 15 October 2014 at Hamilton Hill, wilfully drove a motor vehicle in a manner that was dangerous (Road Traffic Act 1974 (WA), s 60(1))
9 months' imprisonment or 180 PU and minimum 12 months' disqualification
6 months' imprisonment concurrent and 12 months' disqualification
FR10348/2014
On 15 October 2014 at Hamilton Hill, drove whilst under the influence of alcohol (Road Traffic Act, s 63(1))
9 months' imprisonment or 20 - 80 PU and minimum 9 months' disqualification
4 months' imprisonment concurrent and 30 months' disqualification
FR10349/2014
On 15 October 2014 at Hamilton Hill, drove without authority (Road Traffic Act, s 49(1)(a) and s 49(3)(c))
18 months' imprisonment or 20 - 80 PU and minimum 9 months' disqualification
9 months' imprisonment concurrent and 12 months' disqualification
PE119986/2014
On 27 December 2014 at Como, possessed a prohibited drug (cannabis) (Misuse of Drugs Act 1981 (WA), s 6(2))
2 years' imprisonment or a fine of $2,000 or both
3 months' imprisonment concurrent
PE119987/2014
On 16 November 2014 at Greenfields unlawfully assaulted Tanya Joanne Bloomfield with circumstances of aggravation (Criminal Code, s 313(1)(a))
3 years' imprisonment and a fine of $36,000
3 months' imprisonment cumulative
PE119988/2014
On 27 December 2014 at Fremantle, refused to stop a motor vehicle when called upon to stop by a member of the police force while driving the vehicle to escape pursuit by a member of the police force (Road Traffic Act, s 53(2A))
2 years' imprisonment or a minimum fine of $5,000 and minimum 2 years' disqualification
3 months' imprisonment concurrent and 2 years' disqualification
PE119989/2014
On 27 December 2014 at Fremantle, drove a motor vehicle without authority (Road Traffic Act, s 49(1)(a) and (3)(b))
18 months' imprisonment or 20 - 80 PU and minimum 9 months' disqualification
12 months' imprisonment concurrent and 12 months' disqualification
PE119990/2014
On 25 November 2014 at Mandurah, failed to appear in the Mandurah Magistrates Court without reasonable excuse, such appearance being a requirement of a bail undertaking (Bail Act 1982 (WA), s 51(1))
3 years' imprisonment or $10,000 or both
4 months' imprisonment concurrent
PE119991/2014
On 27 December 2014 at Como, was in possession of drug paraphernalia and a prohibited drug (cannabis) (Misuse of Drugs Act, s 7B(6))
3 years' imprisonment or $36,000 or both
4 months' imprisonment concurrent
PE119998/2014
On 27 December 2014 refused to stop a motor vehicle when called upon by a member of the police force and when driving the vehicle concerned to escape pursuit by a member of the police force (Road Traffic Act, s 60(1))
2 years' imprisonment and minimum 2 years' disqualification
2 years and 6 months' imprisonment cumulative and 2 years' disqualification
FR937/2015
On 27 December 2014 at Fremantle, drove a vehicle whilst under the influence of alcohol (Road Traffic Act, s 63(1))
2nd offence: 9 months' imprisonment or 42 - 70 PU and minimum 30 months' disqualification; 3rd offence: 18 months' imprisonment or 42 - 100 PU and permanent disqualification
6 months' imprisonment concurrent and permanent disqualification
The grounds of appeal
The appellant alleged by his grounds of appeal that:
(1)the sentencing judge erred in imposing a life disqualification for the offence of driving under the influence of alcohol (FR937/2015) when the offence was a second offence;
(2)the sentence imposed for the offence of refusing to stop when called upon by a member of the police force and when driving the vehicle concerned to escape pursuit by a member of the police force (PE119998/2014) was manifestly excessive;
(3)the total effective sentence imposed infringed the first limb of the totality principle.
On 24 January 2016, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.
The appellant commenced his appeal out of time. He satisfactorily explained the delay and the respondent did not oppose an application to extend the time within which to appeal. I would grant the application.
Ground 1
Section 63(1) of the Road Traffic Act 1974 (WA) (RTA) provides that it is an offence for a person to drive or attempt to drive a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. Section 63(2) provides that:
(a)a person convicted of a second offence against s 63(1) must be disqualified from holding or obtaining a driver's licence for a period of not less than 30 months; and
(b)a person convicted of a third offence must be permanently disqualified from holding or obtaining a driver's licence.
The appellant was first convicted of an offence against s 63(1) in August 2011. The charges dealt with by the sentencing judge pursuant to s 32 of the Sentencing Act included two offences against s 63(1). The first offence was committed on 15 October 2014 (FR10348/2014). The second offence was committed on 27 December 2014 (FR937/2015). The sentencing judge treated those offences as second and third offences respectively for the purpose of ordering periods of disqualification pursuant to s 63(2).
It was conceded that his Honour erred in doing so having regard to the decision of this court in Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434. The issue in that case was whether s 61A(2)(b) of the Restraining Orders Act 1997 (WA) abrogated the common law rule that 'before a person is subject to an increased penalty for a second or subsequent offence, that person must have both committed and been convicted of the previous offence or offences and those offences and convictions must have occurred on separate days' [27]. Mazza JA (with whom McLure P and Buss JA agreed) applied the principle of legality to hold that the section did not abrogate the rule.
The common law rule was applied by Kennedy J in Carter v Denham [1984] WAR 123 in construing the penalty provisions of s 63(2) RTA. His Honour's reasoning was consistent with Roe v D'Costa and s 63(2) has not been subsequently amended so as to affect the application of the rule to that section.
Disposition
Accordingly, ground 1 has been made out and the appeal should be allowed on that ground.
The only challenge to the sentence imposed for charge FR937/2015 was to the order for permanent disqualification of the appellant's licence. I would vary the sentence by ordering that the appellant be disqualified from holding or obtaining a driver's licence for a period of 30 months.
The sentencing judge made no order for accumulation of the periods of disqualification having regard to the permanent disqualification ordered on charge FR937/2015. Section 105(2) of the Sentencing Act provides that an order disqualifying an offender from holding or obtaining a driver's licence is to be concurrent with any other term for which the offender's licence is or may be disqualified or suspended unless the court orders that the term is to be cumulative on those terms.
In my view, the periods of disqualification imposed by the sentencing judge should be partially accumulated with the period of disqualification to be imposed on charge FR937/2015 so as to reflect the seriousness of the appellant's offending. I would order that the appellant's licence be suspended for a total period of 78 months. That period is fixed by ordering that the periods of suspensions for charges FR937/2015 (30 months), PE119998/2014 (24 months), FR 10349/2014 (12 months) and PE119989/2014 (12 months) be cumulative terms of suspension.
The approach to proposed grounds 2 and 3
Proposed ground 2 alleges that the sentence imposed for the offence of driving recklessly and failing to stop in a circumstance of aggravation committed on 27 December 2014 (PE119998/2014) was manifestly excessive. Proposed ground 3 alleges that the total effective sentence imposed infringed the first limb of the totality principle: that is, the total effective sentence did not 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 (see Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26]).
Where the principle of totality applies, it is of little importance how the ultimate aggregate is made up: R v Holder [1983] 3 NSWLR 245; Roffey [26] (McLure JA, with whom Steytler P and Miller JA agreed). Consequently, although there may be instances where it is appropriate to consider whether an individual sentence was tainted by an express error, 'generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of other counts and its contribution to the total effective sentence': Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, with whom McLure P and Pullin JA agreed). However, the severity or leniency of an individual sentence may be relevant to assessing whether the total effective sentence infringes the totality principle: Giglia and see also, McKenzie v The State of Western Australia [2015] WASCA 163 [43] (Buss JA).
For the reasons that follow, I have concluded that the sentence imposed for the aggravated reckless driving offence that was committed on 27 December 2014 could be characterised as high. However, the sentence does not disclose error. Further, the total effective sentence did not infringe the first limb of the totality principle and that would be so even if the sentence imposed for the aggravated reckless driving offence was held to have been manifestly excessive.
The circumstances of the offending
15 October 2014
On the evening of 15 October 2014 the appellant passed an unmarked police vehicle while travelling at high speed. The police activated emergency lights and sirens and pursued the appellant at speeds up to 126 km per hour. The appellant drove erratically at speed, swerving in and out of traffic for approximately 800 m. He was intercepted by the police when he stopped at traffic control lights.
The appellant was searched and a pair of knuckle-dusters with a fold out blade was found. A breath analysis test was subsequently performed at the Fremantle Police Station and a calculated reading of 1.77 g of alcohol per 100 ml of blood was obtained. The appellant had been disqualified from driving on 12 September 2014.
16 November 2014
The victim of the indictable offences was the appellant's mother. On the afternoon of Sunday, 16 November 2014 the appellant went to his mother's house. He became aggressive and abusive and was told to leave. He grabbed a kitchen knife and held the knife to his mother's throat. He stated that he was going to bash and kill her. He repeated this threat a number of times before leaving.
The appellant returned approximately 15 minutes later and re‑entered his mother's house. He went to her bedroom where he punched a hole in the door. His mother attempted to leave but the appellant grabbed her by the arms and head butted her. He then squeezed the back of her neck forcing her downwards. She managed to escape and the appellant then smashed a kitchen window and damaged a driveway gate as he left. He also stole a motor scooter belonging to his mother and $600 in cash from her bedroom.
In addition to the counts on the indictment, the appellant was charged with aggravated common assault (PE119987/2014) as a result of those incidents.
25 November 2014
The appellant was remanded on 30 October 2014 on his personal undertaking to appear in the Mandurah Magistrates Court on 25 November 2014. He failed to appear on that date and a warrant for his arrest was issued.
27 December 2014
The appellant was observed by police driving at high speed on Carrington Street, Fremantle on the night of 27 December 2014. The police attempted to stop him by activating the emergency lights and siren on a police vehicle. However, the appellant did not stop and increased his speed to approximately 140 km per hour.
The appellant went through a red light to turn on to Canning Highway. He then drove along Canning Highway at speeds of up to 140 km per hour, weaving between traffic causing vehicles to brake heavily and take evasive action. The appellant collided with another vehicle as he approached traffic control lights on Canning Highway in Como. He lost control of his vehicle and struck the traffic control light.
The appellant was apprehended and his vehicle searched. A clipseal bag containing cannabis and a smoking implement were found in the glovebox. A blood alcohol analysis was subsequently undertaken and a calculated reading of .200 g of alcohol per 100 ml of blood was obtained. The appellant was disqualified from driving at the time of the offence.
The appellant's personal circumstances
The appellant was 28 years of age at the time of sentencing. The sentencing judge rightly considered that youth was not a mitigating factor.
The appellant suffered a significant injury at the age of 10 or 11 years when he was struck by a motor vehicle. A psychological report obtained for the purpose of sentencing suggested that the appellant may have suffered neurological damage as a result of the accident and that this may have increased his vulnerability to the negative effects of substance abuse on his level of functioning. However, that possibility had not been investigated in any detail.
The appellant was apparently a gifted student. However, he suffered from behavioural problems and left school in year 11. He has worked as a labourer, roof carpenter and plasterer.
The appellant's father was killed in a motor cycle accident when the appellant was 21 years of age. His father's death had a significant effect on the appellant.
The appellant commenced smoking cannabis when he was 14 years of age and has used the drug on a daily basis for many years. He commenced using alcohol, ecstasy and methamphetamine when he was 16 or 17 years old. He commenced consuming methamphetamine intravenously from the age of 20. He ceased using methamphetamine for a period of approximately four or five years from about 2006. However, he relapsed into methamphetamine use following the breakdown of a long‑term relationship. He also commenced using LSD on a daily basis and was experiencing psychotic phenomena by the time that he was sentenced to a term of imprisonment in 2013. He was released in July 2014 and following his release again relapsed into abusing alcohol, cannabis and methamphetamine. At the time of his offending he was consuming approximately one gram of methamphetamine each day. He was also abusing cannabis and alcohol and was experiencing paranoid thoughts and delusions.
The sentencing judge found that the appellant was suffering from drug induced paranoia across the period of his offending. His Honour further found that the appellant's offending was related to his state of paranoia but that this was not a mitigating factor as the appellant's mental state was caused by the voluntary abuse of illicit substances.
The appellant has a number of convictions for driving offences ‑ four convictions for driving with a blood alcohol level in excess of 0.2%; one conviction for driving under the influence of alcohol; one conviction for driving with a blood alcohol level in excess of 0.8 g per 100 ml of blood; seven convictions for driving while his motor vehicle driver's licence was suspended or without a licence or when not authorised to drive; three convictions for driving an unlicensed motor vehicle and one conviction for reckless driving. In addition, the appellant has convictions for disorderly behaviour in public; criminal damage; assault; receiving and breaches of violence restraining orders, community based orders and suspended imprisonment orders.
Sentencing remarks
The sentencing judge noted in relation to the offences committed on 16 November 2014 that the appellant had subjected his mother to a terrifying ordeal. His Honour characterised the threat to kill as a particularly serious example of that kind of offence. The appellant repeated the threat to bash and kill his mother a number of times and he had the apparent means to carry out the threat as he was armed with a knife.
His Honour did not separately consider each of the remaining offences for which the appellant had been convicted. Rather, his Honour noted that the seriousness of the appellant's offending was evident from the facts alleged by the State and admitted by the appellant. However, the reckless driving offences committed on 15 October and 27 December 2014 were characterised as serious, with his Honour remarking that the manner of the appellant's driving on 27 December was 'appalling'. The appellant on each occasion selfishly put the lives of road users at significant risk.
The sentencing judge carefully considered the appellant's personal circumstances and in particular, his mental health problems. His Honour accepted the appellant's submissions that he was experiencing paranoid delusions at the time that he committed the offences on 15 October and 27 December 2014. The appellant believed that he was being followed or watched by bikies and the police and that his mother and others were conspiring against him. He purchased military type clothes and equipment such as night goggles to monitor his 'enemies' movements and to avoid detection. It appears that the appellant's paranoid beliefs were deeply entrenched. However, his Honour further found that the appellant's mental state was 'substantially caused' by his abuse of alcohol and illicit substances. The appellant had a significant history of alcohol and drug abuse and associated psychotic episodes.
His Honour accepted that the appellant was remorseful but considered that he presented at least a moderate risk of committing further serious offences if he was released to the community without treatment for his substance abuse and associated mental health problems. A distinction was made between the offences charged on indictment and the driving charges that had been previously pending in the Magistrates Court:
While all forms of domestic violence are deplorable, people who are in a drug induced state of paranoia are unlikely to be deterred from engaging in acts of violence, domestic or otherwise, by the imposition of severe penalties in other similar type cases.
However, general deterrence is, in my view, of relevance when it comes to determining the sentences to be imposed on you for your driving related offences. The message does need to be sent out that the type of driving that you engaged in which endangers the lives and safety of others can simply not be tolerated and will be dealt with severely.
A necessary consequence of giving effect to the sentencing consideration of general deterrence is that less weight must be given to any mitigating circumstances that are personal to you. That is not to say that such mitigating circumstances are irrelevant, they are not, but they do assume a little less weight than might otherwise be the case [AB 100].
His Honour accepted that the appellant had pleaded guilty at an early opportunity and reduced the sentences that would otherwise have been imposed by 20% pursuant to s 9AA of the Sentencing Act. Finally, in relation to the aggravated reckless driving offence, his Honour stated that he had been careful to avoid punishing the appellant twice for the offences of failing to stop and aggravated reckless driving. His Honour stated:
I have not, in assessing the seriousness of your reckless driving and arriving at the appropriate sentence for that offence, taken into account the fact that you failed to stop when called upon to do so.
Further, I have not, in imposing the sentence for the failed to stop offence, taken into account you failed to stop in circumstances where you were attempting to escape the police pursuit. I have taken this fact that you were attempting to escape the police pursuit into account in arriving at the appropriate sentence for your offence of aggravated reckless driving but not in determining the sentence for your offence of aggravated failing to stop [AB 103].
Proposed ground of appeal 2
The offence
Section 60(1) RTA provides that a person who wilfully drives a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances, dangerous to the public or to any person commits an offence. Section 49AB(1)(c) RTA further provides that a person commits an offence in a circumstance of aggravation if, at the time of the alleged offence, the person was driving the vehicle concerned to escape pursuit by a police officer.
Section 60(4) RTA provides that the penalty for an offence against s 60(1) is 5 years' imprisonment (the summary conviction penalty is 2 years' imprisonment) if the offence was committed in the circumstance of aggravation referred to in s 49AB(1)(c). Section 60(5) further provides that:
A court sentencing a person for an offence against this section committed in the circumstance of aggravation referred to in s 49AB(1)(c) must -
(a)sentence the person to a term of imprisonment of at least 6 months; and
(b)not suspend the term of imprisonment; and
(c)for a first or second offence - order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 2 years; and
(d)for a third or subsequent offence - order that the offender is permanently disqualified from holding or obtaining a driver's licence.
Section 60(6) provides that s 60(5) applies whether the person was convicted on indictment or summarily and despite pt 5 of the Sentencing Act (which specifies the range of sentencing options ordinarily available). Section 60(7) states that a reference in s 60(5)(c) and s 60(5)(d) to an offence is a reference to an offence against s 60(1) whether or not committed in the circumstance of aggravation referred to in s 49AB(1)(c).
The alleged error
This court can only intervene in an appeal against sentence if the sentencing judge has made a material error of fact or law. The court may allow the appeal if, in its opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.
An allegation that a sentence is manifestly excessive is an allegation of inferred error. In determining whether a sentence is manifestly excessive, the court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of a relevant type; the seriousness of the offending and the personal circumstances of the offender. However, the court will not intervene merely because it might have imposed a different sentence to that which had been imposed. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
The appellant submitted that the sentence imposed for the aggravated reckless driving offence was manifestly excessive having regard to:
(a)the sentences imposed in comparable cases - particular reference was made to Tela v The State of Western Australia [No 2] [2014] WASCA 103;
(b)the fact that the appellant had only one prior conviction for reckless driving (not in a circumstance of aggravation) and that he did not have a record for serious offending;
(c)the appellant's early plea of guilty (for which the sentencing judge reduced the sentence that would otherwise have been imposed by 20% under s 9AA of the Sentencing Act);
(d)the appellant's insight into his offending and remorse for his action.
It was also submitted that the sentencing judge had mischaracterised the nature of the reckless driving offence that the appellant had committed on 15 October 2014 and that this had contributed to the severity of the sentence imposed for the aggravated reckless driving offence committed on 27 December 2014. The sentencing judge stated in sentencing the appellant for the reckless driving offence committed on 15 October 2014:
I will, however, say something about your reckless driving offence. The manner in which you drove on that day while under the influence of alcohol and attempting to escape the police was very dangerous. (ts 39; AB 90)
No circumstance of aggravation was alleged in respect of the 15 October 2014 offence. Accordingly, the appellant submitted that his Honour's remarks had 'contributed to the perception' that the aggravated reckless driving offence committed on 27 December 2014 was the second offence of that kind.
The respondent contended that the sentencing judge had not misapprehended the circumstances and nature of the reckless driving offence committed on 15 October 2014. Although the appellant had not been charged with aggravated reckless driving, the prosecutor had alleged that the appellant was seeking to escape from a police pursuit at the time that he committed the offence. The allegation, which was not challenged, was an aggravating factor for the purpose of s 6 of the Sentencing Act. The sentencing judge had correctly identified the applicable maximum penalty and that indicated that he had not misunderstood the nature of the offence for which the appellant was to be sentenced.
However, the respondent informed the court that the sentencing judge had made a different error in sentencing the appellant for the reckless driving offence committed on 15 October 2014 (FR10347/2014). The error was not the subject of a ground of appeal but was similar to the error alleged in ground 1. The effect of the error is further considered below.
Comparable sentences
The question whether a sentence is manifestly excessive or offends the totality principle is not answered by simply referring to other cases. As Buss JA (as his Honour then was) observed in Le v The State of Western Australia [2014] WASCA 120:
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case [37] ‑ [38].
In Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81, Mitchell J (as his Honour then was) noted that there is no established range of sentences customarily imposed for the offence of aggravated reckless driving [33]; and see also Douglas v Ferguson [2012] WASC 207 [23] (Hall J). His Honour found that a sentence of 18 months' imprisonment was manifestly excessive. However, the circumstances relevant to sentencing in that matter were not comparable to the circumstances in this appeal. As Mitchell J observed, the case lacked some of the aggravating features that were often present in offences of this kind. Nevertheless, his Honour considered that the appropriate starting point for the sentence to be imposed was 18 months' imprisonment (the sentence was reduced to 7 months' imprisonment on account of the appellant's early plea of guilty and his personal circumstances).
It is also relevant to note what was stated by Wheeler J (with whom Pidgeon and Ipp JJ agreed) in Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203. In that case, the appellant had been convicted of a number of offences including stealing a motor vehicle in a circumstance of aggravation. He entered fast track pleas of guilty and was youthful and remorseful. The maximum penalty for the motor vehicle offence was 8 years' imprisonment. The circumstance of aggravation was that the offender wilfully drove the motor vehicle in a manner that constituted reckless driving. The reckless driving occurred during a high speed police pursuit. Her Honour noted that sentences in the range of 4 to 6 years (2 years 8 months to 4 years post transitional) had been imposed for offences of that kind where the court considered the driving to be a serious example of reckless driving towards the upper range of such conduct. Her Honour continued:
I would make the general observation that it is very difficult to compare offences of reckless driving. In particular, however bad the driving may be, it is always possible to imagine a worse case - higher speeds, or a longer pursuit, or contravention of a greater number of road traffic signs or traffic control lights or the like. The particular circumstances of each offence will be of considerable importance, and an examination of the cases to which I have referred reveals that, even between serious offences characterised as being at the higher end of the scale, there is significant variation [17].
Her Honour considered that the sentencing judge's characterisation of the appellant's offence as 'extraordinarily dangerous and ridiculously reckless driving at the higher end of the scale' was justified having regard to the circumstances: the appellant drove at extreme speed during the police pursuit (up to 220 km per hour); the pursuit was prolonged; the appellant drove on the wrong side of the road for a period; the driving included a high speed pursuit through suburban streets in Bunbury and the appellant lost control of his vehicle on two occasions so as to collide with a police car and later to drive through a fence and into more than one suburban backyard. An appeal against a sentence of 6 years' imprisonment (4 years post transitional) was dismissed.
The appellant in Tela had entered fast track pleas of guilty to two counts of aggravated burglary and one count of burglary. He was also sentenced pursuant to s 32 of the Sentencing Act for four offences that had been pending in the Magistrates Court. Those offences included a charge of aggravated reckless driving. The appellant was sentenced to a total effective sentence of 2 years and 9 months' immediate imprisonment and disqualified from holding or obtaining a driver's licence for a total period of 5 years and 9 months. He was sentenced to 12 months' imprisonment for the aggravated reckless driving offence. That sentence was accumulated with the sentence imposed for one of the aggravated burglary counts.
The appellant alleged that the total effective sentence infringed the second limb of the totality principle (although the court also considered whether the sentence infringed the first limb). His appeal was dismissed. However, the individual sentence imposed for the aggravated driving offence was not separately considered having regard to the sole ground of appeal. Accordingly, Tela does not assist in determining this appeal. However, it should be noted that the appellant was 18 years of age when the offences were committed and he had a good employment history.
In Garlett v The State of Western Australia [2016] WASCA 80, the appellant was sentenced for a number of offences including aggravated reckless driving. He was sentenced to 8 months' imprisonment cumulative on the sentences imposed for the other offences. He had been pursued by the police while driving a stolen vehicle. He drove the vehicle recklessly on residential and major arterial roads, weaving in and out of heavy traffic and causing other drivers to take evasive action to avoid collisions. Police aborted the pursuit due to the manner in which the appellant was driving in heavy traffic. This court refused an application for leave to appeal on grounds that included that each of the individual sentences imposed by the sentencing judge were manifestly excessive. In relation to the aggravated reckless driving offence, it was noted that there were no relevant sentencing decisions of this court with which to compare the sentence that had been imposed. However, the court concluded that the submission that the individual sentence of 8 months' imprisonment was manifestly excessive had no reasonable prospect of succeeding.
Disposition
I accept the respondent's submission that the sentencing judge did not misapprehend the circumstances of the reckless driving offence committed by the appellant on 15 October 2014 for the purpose of sentencing for the aggravated reckless driving offence committed on 27 December 2014. However, it is relevant to note that the appellant was convicted of reckless driving on 25 November 2014, the offence having been committed on 12 September 2014. That offence was in addition to the two reckless driving offences for which the appellant was convicted before the sentencing judge.
There were several other factors that aggravated the seriousness of the appellant's offending: the appellant drove at very high speed on a busy suburban arterial road (Carrington Street) and a main highway; he went through a red light at a major intersection (Carrington Street and Canning Highway); he weaved between traffic causing the drivers of other vehicles to take evasive action and he collided with two other vehicles and then crashed into a traffic light on the wrong side of the road. Those factors were in addition to the statutory circumstance of aggravation that was admitted by the appellant. In my view, the sentencing judge was right to characterise the manner of the appellant's driving as 'appalling'.
Although there may be significant variations in the manner of driving that constitutes a breach of s 60(1) RTA, the offence is, by its very nature, a serious offence when committed in the circumstance that the offender was seeking to escape a police pursuit. Further, in this instance the appellant drove on heavily used roads for some distance at enormous speed. He presented a substantial risk to others and it was almost inevitable that he would eventually collide with another vehicle.
As has been noted, the appellant had a significant criminal record. His driving record was especially bad. Consequently, personal deterrence was a significant factor in sentencing the appellant for this offence. General deterrence, the protection of the community and punishment were also important sentencing considerations.
In my view, the sentence imposed by the sentencing judge was not manifestly excessive having regard to the seriousness of the offence, the circumstances in which it was committed, the personal circumstances of the appellant and the other relevant sentencing considerations to which I have referred. I would refuse the appellant leave to appeal on proposed ground of appeal 2.
Charge FR10347/2014
As has been noted, the respondent drew the court's attention to the fact that the sentencing judge treated the reckless driving offence committed on 15 October 2014 as a second offence when, according to the principle in Roe v D'Costa, the offence ought to have been treated as a first offence as the appellant had not been convicted of the offence committed on 12 September 2014 by 15 October 2014. The maximum penalty for a first offence against s 60(1) RTA is a fine of $6,000 or 9 months' imprisonment, with a mandatory period of licence disqualification of 6 months. The sentencing judge proceeded on the assumption that the maximum penalty was a fine of $9,000 or 9 months' imprisonment, with a mandatory period of licence disqualification of 12 months. The appellant was sentenced to 6 months' imprisonment to be served concurrently with all other terms of imprisonment and his licence was disqualified for a period of 12 months.
I do not consider that a different term of imprisonment should be imposed for the offence having regard to its seriousness. However, I would allow the appellant leave to amend his notice of appeal and allow an appeal against the period of licence disqualification. I would substitute a period of 9 months' disqualification.
Proposed ground 3
The appellant submitted that the total effective sentence imposed by the sentencing judge infringed the first limb of the totality principle for two reasons:
(a)the sentence of 2 years' imprisonment imposed for the offence on count 1 on the indictment (threatening to kill his mother while he held a knife to her throat) was 'not at the lower end such as would give an indication that the sentence has been lessened by the consideration of other terms of imprisonment imposed at the time of sentencing' (appellant's submissions, par 62);
(b)the total effective sentence did not properly reflect the appellant's personal circumstances and in particular, his 'lack of record for serious offending', his early pleas of guilty, his insight into his offending and his remorse for his conduct.
The appellant referred to KIP v The State of Western Australia [2013] WASCA 71; The State of Western Australia v Cheeseman [2011] WASCA 15; Rehu v The State of Western Australia [No 2] [2013] WASCA 50 and Quigley v The State of Western Australia [2013] WASCA 9 in support of the proposition that the sentence imposed for the offence of making a threat to kill was not 'at the lower end' of sentences for that offence. Those cases do not, in my view, unequivocally establish that proposition but, in any event, the sentencing judge ordered that all other terms of imprisonment imposed for the indicted offences committed by the appellant on 16 November 2014 were to be served concurrently (his Honour ordered that a sentence of 3 months' imprisonment for the assault on the appellant's mother be accumulated). The appellant's offending on that day was serious - his offending involved repeated, and no doubt, frightening acts of aggression and violence; it was persistent with the appellant twice going to his mother's house to commit offences and it involved criminal conduct analogous to an aggravated burglary.
Further, as has been noted, the appellant had a significant criminal history, particularly in relation to driving offences. The sentencing judge allowed a reduction in the sentences imposed under s 9AA of the Sentencing Act that was, in my view, generous having regard to the obvious strength of the prosecution case. His Honour accepted that the appellant had prospects for rehabilitation. However, the appellant's personal circumstances had to be accorded less weight as personal and general deterrence were significant sentencing considerations. Finally, his Honour expressly considered both limbs of the totality principle.
In my view, the total effective sentence imposed was plainly within the range of a sound exercise of the sentencing discretion and did not infringe the first limb of the totality principle. Moreover, I consider that the appellant's offending was so serious that the total effective sentence would not infringe that principle even if the sentence for the aggravated reckless driving offence had been held to have been manifestly excessive. The appellant committed multiple serious offences that involved persistent and violent aggression against his mother and a significant risk to members of public on more than one occasion.
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