Brooks v Blackley - [2009] WASC 274

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BROOKS -v- BLACKLEY [2009] WASC 274

CORAM: McKECHNIE J

HEARD: 27 AUGUST 2009

DELIVERED : 18 SEPTEMBER 2009

FILE NO/S: SJA 1059 of 2009

BETWEEN: KYLE REECE BROOKS
Appellant
AND
DANIEL GORDON BLACKLEY
PAUL CARROLL
MICHAEL JEFFREY WITHERS
DAVID JOHN CLEMANS
SCOTT JOSEPH OWEN
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 6265 of 2008, HV 24 of 2009, BU 715 of 2009, BU 713 of 2009, BU 712 of 2009, BU 889 of 2009, BU 2813 of 2009, BU 2814 of 2009, BU 2680 of 2009

Catchwords:

Road traffic - Sentence - Repeated offending of driving under suspension - Need for general and personal deterrence - Whether minimum period before parole can be taken into account - Whether sentence can be increased because of time already spent in custody

Legislation:

Nil

Result:

Appeal allowed
Total sentence of 20 months reduced to sentence of 12 months

Category: D

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondents : Ms K A T Pedersen

Solicitors:

Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia

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

Maroney v The State of Western Australia [2006] WASCA 130

McKECHNIE J: On 11 May 2009 the appellant appeared in the Magistrates Court for sentence on a series of charges including a number of charges of driving under suspension. Some of those offences had occurred after the appellant had been placed on a suspended sentence of imprisonment for 8 months, suspended for 12 months, (on 12 January 2009) for no motor driver's licence for an offence committed on 9 January 2009. The magistrate activated the suspended sentence and imposed other sentences making a total of 20 months' imprisonment on the appellant with an order for parole.
The appellant appeals on a single ground as follows:
The aggregate sentence of 20 months imprisonment imposed by the Learned Magistrate was disproportionate to the overall criminality involved in the offences committed by the Appellant when viewed in their entirety and in regard to all the circumstances of the case, including those personal to the Appellant.
Particulars
(a)The Appellant's youth.
(b)The Appellant's early pleas of guilty.
(c)The Appellant had been imprisoned once before when he was 18 for 4 months in Queensland with his Western Australian record of convictions consisting entirely of traffic offences.
(d)The Appellant's loss of employment, accommodation difficulties and lack of family support contributing to the Appellant's offending behaviour.
(e)The Appellant never having been subject to supervision in any jurisdiction, as referred to in the pre sentence report.
(f)The accumulation of 4 sentences of imprisonment for driving under suspension, making an aggregate of 20 months imprisonment, was too severe when having regard to the range of sentences customarily imposed for driving under suspension offences.
The charges which the appellant faced were as follows:

Prosecution No	Offence	Sentence
BU 6265/08 (26/10/08)	Driving under suspension	4 months' imprisonment cumulative with imprisonment ordered on 12 January 2009, and driver's licence disqualification of 9 months cumulative
BU 6266/08 (26/10/08)	Driving an unlicensed vehicle	Fine of 5 cents
BU 6267/08 (26/10/08)	False number plate	Fine of 5 cents
HV 23/09 (9/1/09)	Driving with a blood alcohol reading exceeding 0.02g alcohol per 100ml of blood	Fine of $100 and motor driver's licence disqualification of 3 months.
HV 24/09 (9/1/09)	Driving under suspension	Suspended sentence of 8 months' imprisonment suspended for 12 months imposed on 12 January 2009 activated (operative from 4 May 2009), and motor driver's licence disqualification of 18 months cumulative
BU 0712/09 (25/1/09)	Driving under suspension	4 months' imprisonment concurrent, and motor driver's licence disqualification of 9 months cumulative
BU 0713/09 (9/1/09)	Breach of bail undertaking	1 month's imprisonment concurrent
BU 0715/09 (25/1/09)	Unlawful damage	4 months' imprisonment concurrent
BU 889/09 (28/1/09)	Driving under suspension	4 months' imprisonment cumulative

BU 2813/09 (23/4/09)	Driving under suspension	4 months' imprisonment cumulative, and driver's licence disqualification of 9 months cumulative
BU 2814/09 (23/4/09)	Possession of a smoking utensil	14 days' imprisonment concurrent
BU 2680/09 (1/5/09)	Driving under suspension	1 month's imprisonment concurrent, and driver's licence disqualification of 18 months cumulative

Before the commission of these offences, the appellant had been convicted of driving an unlicensed vehicle and driving without a licence on 21 July 2008 (offence dates 17 July 2008) and of driving while under suspension on 22 October 2008 (offence date 29 September 2008).
The driving record demonstrates a serious disrespect for authority and a lack of understanding of the consequences of driving while under suspension. The timing of the offences, following the suspended term of imprisonment, indicates a wilful flouting of the law.
So much is implicitly accepted by the appellant who does not challenge the imposition of a term of immediate imprisonment, simply its length.
There can be no complaint about the length of the individual sentences that were imposed. All are well within the range of an appropriate sentencing discretion. The sole issue is whether the accumulation of the sentences to reach a total of 20 months so far exceeds the exercise of a sound sentencing discretion as to amount to error.
The appellant is aged 23. He has a good work ethic and is a qualified butcher/boner but had been retrenched from his employer, Harvey Beef. He has serious issues with alcohol and cannabis.
The appellant points to a number of factors which he assert demonstrate error in the selection of the length of the term of imprisonment. It appears that the magistrate clearly took account of the appellant's youth and early pleas of guilty in selecting the length of the various sentences. There is no merit in particulars (a) and (b) of the ground of appeal.
In relation to particular (c), it is the fact that the West Australian record of convictions consists entirely of traffic offences which are relevant. It is the appellant's persistent breach of the Road Traffic Act 1974 (WA) which requires strong personal deterrence.
The difficulties referred to in particular (d) were matters to be taken into consideration but in the circumstances not much weight could have been given to them having regard to the persistence of the offending.
As to particular (e), the pre‑sentence report writer did not consider the appellant a suitable candidate for community intervention.
That really leaves particular (f) as the only live matter for consideration. Although not expressed as a particular, in the written submissions the appellant refers to a comment by the magistrate in relation to the total sentence of 20 months' imprisonment where the magistrate said (ts 17):
In my view 20 months is not crushing when there is a consideration of eligibility for parole, and of course the sentences are to be operative from 4 May, when you were, as I'm to understand, placed into custody.
The first reference is to parole eligibility. The appellant refers to Maroney v The State of Western Australia [2006] WASCA 130 at [25]. Maroney restated the settled law as to the irrelevance of a non‑parole period under the Sentencing Act as it then applied. However, Parliament has altered the Sentencing Act by cl 3A(3) as follows:
A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause 2 applied to their imposition.
The effect is that the rule in Maroney is now modified. Judicial officers may have regard to minimum terms. The magistrate's comments can be interpreted in two ways. If by his comment he intended to convey that the appellant would serve only 10 months' imprisonment, then he was in error for the reasons given in Maroney. If, however, he intended to convey that he had taken account of minimum terms for similar offending and that the total sentence he imposed was in accord with minimum terms, then he was complying with the Sentencing Act and was not in error. That, however, still begs the question whether the sentence was in accord with minimum terms imposed for similar offences.
The second reference is to the time already spent in custody. It is an error to assume that because a sentence has been backdated, a person will only need to serve a further short period in custody. This overlooks the reason for backdating in the first place which is because a person has served time in custody for offences. The length of custody overall is unaffected by the time which must be served following the court appearance when the sentence is pronounced.
Both the appellant and the respondent have referred to many cases to establish a range of sentences for similar offences of driving while under suspension. It is unnecessary for me to refer to these cases because I consider, with respect, the magistrate erred when he had a final look at the total of 20 months' imprisonment. I have already referred to one error. I consider that the magistrate also erred in referring to eligibility for parole. He made reference to other cases which would give rise to the inference that he was referring to the standard of minimum term rather than the effect of the minimum term on the appellant. I conclude that there was a Maroney type error. I do not consider the magistrate took account of minimum terms in other cases. In any event, if he did then the sentence he imposed exceeded the minimum term generally imposed for similar offences.
These errors affected the sentences and make it necessary to sentence the appellant afresh. I have regard to the appellant's youth and the other circumstances of mitigation raised on his behalf, such as they are. They are chiefly his early pleas of guilty and good work ethic. The offences occurred over a relatively short period of time during which the appellant was under considerable stress due to loss of employment and accommodation. Against that, and featuring strongly in the sentencing process, is the need for deterrence, both general and personal, and the need to punish wilful and persistent disrespect for authority.
Taking into account all those factors, and having regard to the range of sentences disclosed in the authorities referred to by both counsel, I restructure the sentences to arrive at a total sentence of 12 months' imprisonment with parole eligibility.
I leave untouched the length of each sentence but vary the magistrate's order by making all other sentences cumulative on the activated sentence of 8 months' imprisonment for driving under suspension (HV 24/09).
The order for parole eligibility remains.