Cowley v Godwin
[2006] WASC 74
COWLEY -v- GODWIN [2006] WASC 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 74 | |
| Case No: | SJA:1092/2005 | 21 APRIL 2006 | |
| Coram: | BLAXELL J | 3/05/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GREGORY JOHN COWLEY WAYNE GODWIN |
Catchwords: | Road Traffic Act 1974 (WA) Reckless driving First offence Disqualification from driving for 18 months Whether period of disqualification manifestly excessive |
Legislation: | Criminal Procedure Act 2004 (WA), s 35(13) Road Traffic Act 1974 (WA), s 60 |
Case References: | Chan (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 Forbes v Durant [1999] WASCA 85 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Richards v Damianopolous [2002] WASCA 159 Hopper v The Queen [2003] WASCA 153 Langridge v The Queen (1996) 17 WAR 346 Marker v The Queen [2002] WASCA 282 Piggott v Chitty, unreported; SCt of WA; Library No 920116; 9 March 1992 Re the State of Western Australia; Ex parte Worswick [2005] WASCA 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WAYNE GODWIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : JUSTICES OF THE PEACE AT KUNUNURRA
Citation : THE POLICE v GREGORY JOHN COWLEY
File No : JO 2570 of 2005
Catchwords:
Road Traffic Act 1974 (WA) - Reckless driving - First offence - Disqualification from driving for 18 months - Whether period of disqualification manifestly excessive
(Page 2)
Legislation:
Criminal Procedure Act 2004 (WA), s 35(13)
Road Traffic Act 1974 (WA), s 60
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : Ms K Y Loh
Solicitors:
Appellant : Hammond Worthington
Respondent : State Solicitor for Western Australia
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Forbes v Durant [1999] WASCA 85
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Richards v Damianopolous [2002] WASCA 159
Case(s) also cited:
Hopper v The Queen [2003] WASCA 153
Langridge v The Queen (1996) 17 WAR 346
Marker v The Queen [2002] WASCA 282
Piggott v Chitty, unreported; SCt of WA; Library No 920116; 9 March 1992
Re the State of Western Australia; Ex parte Worswick [2005] WASCA 187
(Page 3)
1 BLAXELL J: This is an appeal from the decision of two Justices of the Peace in the Kununurra Magistrates Court on 5 October 2005. On that date the appellant pleaded guilty to offences of failing to stop when called upon (contrary to s 53 of the Road Traffic Act 1974 (WA)) and reckless driving (contrary to s 60 of that Act). The court imposed fines of $300 and $1000 respectively, and in respect of the conviction for reckless driving also disqualified the appellant from holding a motor driver's licence for a period of 18 months.
2 The appeal is against the period of disqualification imposed, and the sole ground of appeal is that:
"The period of motor driver's licence disqualification is manifestly excessive given matters which include factors personal to me (such as my reasonably good driving record, good character, and youth) and my guilty plea."
The proceedings in the Magistrates Court
3 The offences were committed at Craigie on 22 January 2005, and the appellant was arrested and charged the following day. He initially appeared in the Joondalup Magistrates Court and at that time was legally represented. The complaints were later transferred to the Kununurra Magistrates Court, and I understand that the reason for this was that the appellant was then living and working in that area.
4 When the appellant came to be dealt with in the Kununurra Magistrates Court on 5 September 2005 he was not legally represented and no duty lawyer was present. However, the appellant accepted an offer of free representation from a non-legally qualified court officer of the Aboriginal Legal Service, Mr Frank Chulung.
5 In his affidavit in support of the appeal, the appellant deposes that he had time for only a brief discussion with Mr Chulung before being called into the courthouse where the charges were immediately dealt with by two Justices of the Peace. The appellant pleaded guilty to both charges and the transcript shows that the following facts were read to the court by the prosecutor:
"At 12.30am on Saturday the 22nd January 2005, the defendant drove a Nissan Patrol tray-top, registration 1AER 288, north on Eddystone Avenue in Craigie. The defendant's vehicle appeared to be exceeding the speed limit for the area which was 50 kilometres per hour.
(Page 4)
- [A] police officer in the centre of the north bound lane of Eddystone Avenue, indicated for the defendant to pull over to the left hand verge. Initially the defendant decelerated but dropped down a gear and accelerated heavily towards the police officer who was forced to jump out of the way to avoid being run down.
The defendant continued to accelerate at a - - in a northerly direction along Eddystone Avenue. At the time the police officer was in uniform, holding a police issue torch, standing under street lighting and was clearly visible.
Police began to pursue the defendant along Eddystone Avenue, he turned left into Craigie Drive and continued to accelerate in a westerly direction, reaching speeds of over 100 kilometres per hour, speed allowed is 50 kilometres per hour.
Defendant drove across round-a-abouts and chicanes whilst maintaining his speed. At the intersection of Craigie Drive and Marmion Avenue, the defendant turned right and failed to stop at the stop sign associated with this intersection. He turned left into Mullaloo Drive, right into Meridian Drive and left into Charonia Road. As he drove into Charonia Road the defendant turned the headlights of his vehicle off before leaving his vehicle outside the Mullaloo Primary School. A search of the area failed to locate him, as he had decamped from the vehicle.
Sunday the 23rd of January the defendant attended the Warwick Police Station where he participated in a video interview and made certain admissions, subsequently arrested and the present charges were preferred. Explanation, 'I didn't want to stop because I knew I'd get a yellow sticker.' and the defendant also admitted to seeing the police officer standing in the road, when he had signalled him to stop."
6 For present purposes it is important to note that this narration of the facts did not separate those facts relevant to the charge of failing to stop from those that established the offence of reckless driving. In this regard, the written "statement of material facts" previously served by the prosecutor on the appellant attributed the first three of the above paragraphs to the offence of failing to stop, and the remaining paragraphs to the offence of reckless driving.
(Page 5)
7 After the facts were read, Mr Chulung spoke on the appellant's behalf and indicated that not all of the same were agreed. In particular, the appellant was not aware at the time that it was a police officer who was signalling him to stop. Subsequently, "he increased his speed, then a couple of kilometres down the road he's seen a car following him with the high beam on, so he panicked ... and left his car". The next day he made contact with the police and fully co-operated with them.
8 The court was provided with details of the appellant's background, including that he was 23 years of age, single, and employed as a maintenance worker at El Questro Station. The court was also told that the appellant was very remorseful and felt very foolish about what had happened. His conduct was explained on the basis that he was only a young man and had got carried away and excited. In these circumstances, Mr Chulung asked the court to impose a minimum penalty.
9 The court then proceeded to pass sentence, and imposed a fine of $300 for the offence of failing to stop, and a fine of $1000 together with the disqualification of 18 months for the offence of reckless driving. At the same time, the court gave the appellant what could be fairly described as a "dressing down" for his behaviour when committing the offences. The Justice of the Peace speaking for the court described the appellant's actions as "immature, childlike and stupid". The appellant was also told that he should think about what driving through a built up area at double the speed limit might do, and what risks it might pose to children, pregnant women and old women. The court also expressed considerable scepticism as to the reasons why the appellant had abandoned his vehicle and run away.
10 The appellant then asked if he could "make a comment" and was permitted to do so. The appellant stated that "there was no way I was doing 100 kilometres an hour" and that he had not driven over a roundabout.
11 During the course of the exchange between the appellant and the court that followed, a Justice of the Peace stated:
"That should have been brought up earlier ... that's why you have a representative."
- The appellant was also asked if he had been drinking on the night and the appellant said that he had not. The proceedings concluded with the Justice of the Peace stating that the penalties as previously imposed would stand.
(Page 6)
Other evidence admitted on appeal
12 I have before me an affidavit of Senior Constable Wayne Godwin which generally verifies the facts of the offences and also tenders a video record of an interview with the appellant conducted on 23 January 2006. Although this video was not before the Magistrate's Court at the time of sentencing, I consider that the contents are relevant to the merits of the appeal.
13 From my viewing of the video it is clear that the appellant participated voluntarily and that it was conducted in a very fair fashion by the two police officers present. The appellant's version of events was sometimes contradictory, and although broadly consistent with his current assertions, was not entirely so.
14 A fair summary of the appellant's video account is that he had been at the Craigie Tavern where he had had "two drinks". There were two passengers in his utility who he was taking home. He was also "showing off" the vehicle to his passengers because it had been modified and had a recently fitted 5 litre V8 motor.
15 As the appellant drove north along Eddystone Avenue he was travelling at "possibly 70 kph" when he came upon what appeared to be the scene of an accident. There was a tow truck present, and also a person waving a torch in the middle of the road whom the appellant assumed to be the tow truck driver. The torch was being waved in a manner that suggested to the appellant that he was being signalled to slow down. The appellant did briefly slow down but then accelerated and continued on his way.
16 It was put to the appellant that the person in the middle of the road was a uniformed policeman. Although the appellant accepted this as a fact, he asserted that he had not recognised that person as a policeman at the time. It was also put to the appellant that he momentarily decelerated but then "floored" the accelerator and drove towards the policeman who had to jump out of the way to avoid being hit. The appellant's response to this proposition can be fairly described as equivocal.
17 The appellant denied seeing any flashing blue lights during the subsequent police pursuit but admitted that the thought had occurred to him that it might be a police vehicle following him. Certainly, the reason why the appellant abandoned his vehicle was the fear that it was a police car behind him and that he would get a yellow sticker. In this regard the
(Page 7)
- recent modifications to his utility had not been tested and approved by the police.
18 The appellant denied that he had turned off his vehicle lights before abandoning it, and asserted that at all material times his left-hand headlight and tail lights were not working at all.
19 As to the question of his speed during the pursuit, the appellant had not been looking at his speedometer and could not say what his speed was. However, he admitted that his vehicle "maybe got to 100".
The relevance of the procedural issues
20 As already noted, the sole ground of appeal is that the period of disqualification imposed was manifestly excessive. The appellant has not sought leave to add a ground claiming a miscarriage of justice, but has nevertheless raised issues going to the question of procedural fairness. In this regard, he asserts that he was inadequately represented and that he was not given a fair opportunity to be heard. I also understand him to say that further unfairness resulted from the facts being presented to the court in an amalgamated fashion which failed to distinguish between the two offences.
21 In all of these circumstances I think that the issues concerning procedural fairness are only relevant to the extent that they might help explain why the court decided upon the penalty that it did. Accordingly, when I come to address those issues I will do so in that context.
The principles to be applied
22 The principles that are applied by this Court when considering an appeal against sentence are well established. The appeal is from the exercise of a judicial discretion and this Court may not substitute its own opinion for that of the sentencing court merely because it would have exercised its discretion in a different way (Lowndes v The Queen (1999) 195 CLR 665, 672). For the appeal to succeed it must be shown that the sentencing court acted upon a wrong principle, took into account extraneous or irrelevant matters, made a mistake of fact, or failed to take account of some material consideration (House v The King (1936) 55 CLR 499, 505). In any of such circumstances the decision of the sentencing court is to be reviewed, and this Court can exercise and substitute its own discretion if it has the materials to do so (House v The King (supra) at 505).
(Page 8)
23 In circumstances where an error of the type referred to above cannot be identified, but the sentence is nevertheless "unreasonable or plainly unjust", it may be inferred that the sentencing discretion has miscarried. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (House v The King (supra) at 505). See also Dinsdale v The Queen (2000) 202 CLR 321, 325.
24 Accordingly, an appellate court will review a sentence that is manifestly inadequate or excessive. In determining whether a sentence is excessive, it must be looked at from the perspective of the maximum sentence prescribed, the standards of sentencing customarily observed for that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type, and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337, 342).
The facts to which these principles should be applied
25 At the hearing in the Kununurra Magistrates Court, and again on appeal, the appellant has taken issue with certain of the facts alleged in connection with the offences of which he was convicted. However the disputed facts are limited in scope, and concern whether the appellant knew that it was a police officer indicating for him to stop, the speed at which he subsequently drove, and whether he drove across roundabouts (as distinct from chicanes).
26 Although in my opinion, these issues were not of sufficient significance to justify a trial of issues, I consider that it is reasonable for present purposes to look at the likely outcome if such a trial had been held. Obviously, if there had been a trial of issues, the video record of interview would have been tendered, and the court would have taken the contents of that into account when assessing the credibility of the appellant's assertions of fact.
27 Taking a generous view of the likely outcome, the court might not have been satisfied that the accused was aware that the person in front of his vehicle was a police officer. (In my view not a great deal turns upon this.) As to the question of speed there was ample evidence (including the appellant's own admission) to satisfy the court that during the course of the police pursuit his vehicle reached at least 100 kph in a 50 kph zone. The court would not have been satisfied that the appellant passed over roundabouts, but nevertheless would have found that his vehicle passed over chicanes (being traffic calming devices which, when negotiated properly, require a vehicle to slow down).
(Page 9)
28 The appellant contends that the admitted facts that he "accelerated heavily towards [the person in the middle of the road] who was forced to jump out of the way to avoid being run down" did not form part of his offence of reckless driving. The reason for this is that those particular allegations were set out in the statement of material facts attached to the prosecution notice under the heading of "failing to stop".
29 In my view, there is no substance to this submission. The statement of material facts was clearly a running narrative of one continuous episode during the course of which the offence of failing to stop occurred contemporaneously with the commencement of the offence of reckless driving. Furthermore, the offence of failing to stop is an offence of omission not commission, and the positive acts of accelerating towards the person in the middle of the road and then continuing to accelerate away can only have relevance to an ongoing offence of reckless driving.
30 With regards to the appellant's personal circumstances, he has a prior conviction in 2002 for driving a motor vehicle with a percentage of alcohol in his blood in excess of .08 per cent. Personal references tendered for the purposes of the appeal indicate that he has a good work record, that he is genuinely remorseful, and that his behaviour on 22 January 2005 was out of character.
Whether the penalty imposed was manifestly excessive
31 Although s 60 of the Road Traffic Act 1974 specifies maximum penalties by way of fines or imprisonment for the offence of reckless driving, it does not provide for maximum periods of disqualification from holding or obtaining a driver's licence. Instead, there are graduated minimum periods of disqualification, and for a first offence, that period is six months. As to the statutory purpose underlying these provisions, I respectfully adopt what McLure J had to say in Richards v Damianopolous [2002] WASCA 159:
"[17] In my view the statutory scheme is intended to accommodate the wide variety of conduct involving varying degrees of culpability that can constitute the offence of reckless driving. For example, the circumstances of a first offence may be of a higher scale of seriousness warranting a longer period of disqualification than the circumstances of a second offence. It is the mere fact of repetition for second and subsequent offences which attracts the increased minimum penalty.
(Page 10)
- [18] Further, it is self evidently the case that the fixing of a statutory minimum does not give rise to a presumption that the minimum penalty is to be imposed: Piggott v Chitty, unreported; SCt of WA; Library No 920116; 9 March 1992 per White J"
32 As to whether or not there are any customary standards of sentencing for offences of reckless driving, it would seem that "it is difficult to discern a tariff or range of sentences or disqualifications most commonly imposed" (McKechnie J in Forbes v Durant [1999] WASCA 85). Given that the most serious case of a first offence of reckless driving can attract a term of nine months' imprisonment, it must be accepted that in circumstances involving a lesser degree of culpability, a relatively lengthy period of disqualification (without imprisonment) might sometimes be justified.
33 In my view, the episode of driving the subject of the present appeal, was a fairly serious example of a first offence of reckless driving. At all material times the appellant was driving in a 50 kph zone. He approached the scene of an accident travelling at a speed of "possibly 70 kph". He saw a person in the middle of the road signalling (as he thought) that he should slow down. Instead of slowing down the appellant accelerated towards that person causing him to jump out of the way for his own safety. The appellant then continued to accelerate and reached speeds of 100 kph while being pursued by police. In the course of this pursuit the appellant passed over chicanes without negotiating them in the proper way, and also turned onto a main thoroughfare without stopping at a stop sign. Towards the end of the pursuit he turned off his vehicle lights.
34 Although the appellant is young, and is ordinarily of good character, he does have a prior conviction for driving with excess alcohol in his blood. This fact, combined with the particular circumstances of his offence show a need for personal and general deterrence. While a period of 18 months disqualification may well be towards the high end of the appropriate range for most first offences of reckless driving, I am not persuaded that it was manifestly excessive in the circumstances of the present case.
35 In coming to this decision I have paid full regard to the appellant's complaints about the circumstances surrounding his appearance in the Magistrates Court. The reality for defendants facing minor charges in courts sitting in remote locations is that there are simply no lawyers available. Although it may have been irregular for the defendant to be
(Page 11)
- represented by a non-legally qualified person, my reading of the transcript indicates that that representation was of a standard commonly experienced with duty counsel in the metropolitan area.
36 Nevertheless, when the appellant himself told the court that he disputed certain facts, the court should have allowed him to enlarge on those issues instead of telling him that the matters "should have been brought up earlier". It is because the appellant was thereby denied a full opportunity to be heard that I have canvassed the likely outcome if there had been a trial of issues. In the end, it is clear that even if the appellant had asserted that there was a miscarriage of justice, it is not a ground of appeal that could have been sustained.
37 For all of the above reasons the appeal will be dismissed.
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