Cross v Cook
[2001] WASCA 242
•15 AUGUST 2001
CROSS -v- COOK [2001] WASCA 242
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 242 | |
| 15/08/2001 | |||
| Case No: | SJA:1105/2001 | 24 JULY 2001 | |
| Coram: | MILLER J | 24/07/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Application for leave to appeal and appeal heard together Appeal allowed Sentence of finite imprisonment to be served immediately quashed In lieu thereof a sentence of imprisonment to be suspended for a period of 12 months | ||
| D | |||
| PDF Version |
| Parties: | REUBEN WAYNE CROSS JOHN MAXWELL COOK |
Catchwords: | Appeal Driving offence Fourth conviction for driving under suspension Sentence of imprisonment Whether suspended sentence appropriate |
Legislation: | Justices Act 1902, s 186(1)(b), s 190 |
Case References: | Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999 Dinsdale v The Queen (2000) 74 ALJR 1538 Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998 Marshall v Spent (2000) 111 A Crim R 572 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 Police v Cadd (1997) 69 SASR 150 R v Liddington (1997) 18 WAR 394 House v The King (1936) 55 CLR 499 Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998 Lowndes v The Queen [1999] HCA 29 McGregor v Connor & Anor [2001] WASCA 187 O'Gormon v The Queen, unreported; CCA SCt of WA; Library No 980744 (Anderson J); 18 December 1998 R v Tait (1979) 46 FLR 386 Shooter v The Queen (1997) 97 A Crim R 581 Slater v Whitehead [1999] WASCA 69 Vickers v Bailey [2000] WASCA 136 Wirth v The Queen (1976) 14 SASR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
JOHN MAXWELL COOK
Respondent
Catchwords:
Appeal - Driving offence - Fourth conviction for driving under suspension - Sentence of imprisonment - Whether suspended sentence appropriate
Legislation:
Justices Act 1902, s 186(1)(b), s 190
Result:
Leave to appeal granted
Application for leave to appeal and appeal heard together
Appeal allowed
Sentence of finite imprisonment to be served immediately quashed
(Page 2)
In lieu thereof a sentence of imprisonment to be suspended for a period of 12 months
Category: D
Representation:
Counsel:
Applicant : Mr D S Hunter
Respondent : Ms C J Thatcher
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999
Dinsdale v The Queen (2000) 74 ALJR 1538
Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998
Marshall v Spent (2000) 111 A Crim R 572
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Police v Cadd (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394
Case(s) also cited:
House v The King (1936) 55 CLR 499
Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998
Lowndes v The Queen [1999] HCA 29
McGregor v Connor & Anor [2001] WASCA 187
O'Gormon v The Queen, unreported; CCA SCt of WA; Library No 980744 (Anderson J); 18 December 1998
R v Tait (1979) 46 FLR 386
(Page 3)
Shooter v The Queen (1997) 97 A Crim R 581
Slater v Whitehead [1999] WASCA 69
Vickers v Bailey [2000] WASCA 136
Wirth v The Queen (1976) 14 SASR 291
(Page 4)
1 MILLER J: This was an application for leave to appeal against a sentence of 4 months' imprisonment imposed upon the applicant in the Court of Petty Sessions at Bunbury on 26 June 2001. That sentence was imposed in relation to an offence of driving under suspension, which was the fourth conviction of the applicant for such an offence. The application for leave to appeal set out the proposed ground of appeal in the following terms:
"The sentence imposed for the charge of driving a motor vehicle without being the holder of the appropriate valid drivers licence and whilst legally disentitled to hold a drivers licence due to fine suspension was manifestly excessive -
Particulars
i) The Applicant pleaded guilty at the first opportunity;
ii) The Applicant does not have an extensive criminal record;
iii) The circumstances in which the offence was committed; and
iv) The Applicant's personal circumstances called for a more lenient sentence."
2 At the hearing of the application, I granted leave to appeal on the proposed ground. I also ordered (Justices Act 1902, s 190) that the appeal should be determined at the same time as the application, it being in the interests of justice to do so and sufficient notice having been given to the respondent.
3 At the conclusion of the hearing, I allowed the appeal, quashed the sentence of finite imprisonment to be served immediately by the applicant, and in lieu thereof, suspended the 4 months sentence of imprisonment for a period of 12 months, with effect from 26 June 2001. I then undertook to give reasons for that decision and these are the reasons.
4 The applicant was born on 17 August 1974 and is presently 26 years of age. He is in a de facto relationship and has three children. The family lives at 3 Spurr Road in Capel, which is a house owned by the applicant's employer, Mr Robert Witten. The family was living in and renting this house prior to 26 June 2001 when the applicant was sentenced to
(Page 5)
- imprisonment. His children are aged two and a half years, one year and nine weeks respectively.
5 The applicant has employment as a stable foreman with Mr Witten. He gained this employment approximately six weeks before he appeared in the Bunbury Court of Petty Sessions on 26 June 2001. A letter written by Mr Witten to "the presiding justice of the Supreme Court" dated 7 July 2001 reveals that the applicant has been found, during the course of his employment as stable foreman, to be honest, reliable and very good at his work. The applicant's imprisonment has caused difficulties at the stable, but his job is being kept open to him in the hope that he may be released from prison in order to take it up again. Mr Witten says that the applicant, his wife and three children rent his house in Capel at $150 per week, which sum has been waived during the period of the applicant's imprisonment. This, in turn, has caused Mr Witten to be out-of-pocket, as he needs the money to repay a loan on the property.
6 The applicant has a bad driving record. He had, prior to 26 June 2001, three prior convictions for driving under suspension. They were on 10 May 1994, 6 April 2000 and 20 June 2000. The conviction on 6 April 2000 was for driving without a motor driver's licence by reason of being "under fines suspension". The other convictions related to driving whilst under court suspension. When the applicant came before the court on 26 June 2001, it was thought that he was driving under suspension by reason of fines suspension, but it seems, in fact, that he was driving whilst under court suspension, because he was disqualified from holding a licence for a period of nine months when he appeared before the court on 20 June 2001. The offence of which he was convicted on 26 June 2001 had occurred on 22 January 2001, which was well within the nine-month disqualification period.
7 When the matter came before the learned Magistrate on 26 June 2001, the prosecutor recited the facts. There was another charge of driving with a percentage of alcohol in the blood exceeding .08 per cent, to which the applicant pleaded guilty. Insofar as the charge of driving under suspension was concerned, the court was informed that "at the time of driving his licence was subject to fine suspension, two fine suspension orders from 9 October 1998 and one dated 13 September last year".
8 The applicant was represented before the learned Magistrate and his counsel informed the court that the applicant had been driving on the day in question for the purpose of getting food for the family. Information was given to the court about his employment and his domestic situation,
(Page 6)
- and it was pointed out that he had paid off all outstanding fines. It was conceded that it was the applicant's fourth conviction for driving under suspension, but a suspended sentence was sought in the circumstances.
9 The learned Magistrate took the view that a sentence of imprisonment ought to be imposed unless there were exceptional circumstances. His Worship referred to cases decided in this Court:
"Of course a term of imprisonment is discretionary but Mr McKechnie J and Mr Miller J has been saying even a first offender driving under suspension should, unless there are exceptional circumstances, have a term of imprisonment."
10 His Worship then added:
"The other matter of course to which you've pleaded guilty is that you were driving while legally disentitled to hold a driver's licence. It has been put - and I accept - that you were driving because you hadn't paid fines so it was a fine suspension matter.
That's not the end of your problem but rather the beginning. I'm not here to resentence you for any earlier offences except to say that in 1994 you were convicted of the same offence. In the year 2000 in April you were convicted of driving under fine suspension for which you were fined $1,000. 2 months later at Mandurah you were convicted of driving - again under suspension - and fined $1,200.
It would appear that fines indeed have little or no deterrent effect upon you. I accept that they're not orders - - that suspension orders are not made by courts but they're made by parliament under the provisions of the Road Traffic Act.
Mr Justice McKechnie in his judgments has set out the social reasons why the offence is serious. It not only involves insurance matters, but it involves the disobedience to the parliament's provisions.
One has to look at the circumstances of the driving and the circumstances relating to you personally. I'm told that you were at home and a friend called and said they had no food in the house. Apparently you had some food left over and decided to take it to him. On the way taking it - the food to the person - you were involved in this traffic accident.
(Page 7)
- Now of course that involved a deliberate decision on your part to drive. There was certainly no emergency and there was certainly no exceptional circumstances requiring you to drive a motor vehicle.
Having said that, I accept that parliament has recently said that driving under fine suspension is a less serious offence than driving under a court imposed suspension. But parliament has still provided for the offence - a maximum term of some 12 months.
Discretionary is, of course, the suspension of the licence. In my view having said all that the appropriate term of imprisonment is some 4 months and as the offence was a deliberate offence and there was no emergency I don't intend to suspend the sentence.
So you're imprisoned for 4 months. Your motor driver's licence is again suspended for 9 months cumulative on any current suspension."
11 The learned Magistrate was correct in saying that in a number of cases in this Court it has been held that the offence of multiple driving under suspension (not a first offence of driving under suspension) will, unless there are exceptional circumstances, generally call for a sentence of imprisonment. In a number of cases leading to and including Marshall v Spent (2000) 111 A Crim R 572, I held that the offence of repeatedly driving whilst disqualified ordinarily warrants imprisonment, and whilst a suspended sentence of imprisonment will always be open in the particular circumstances of a case, it will be an unusual case where the circumstances of the offence support suspension. Cases where I had reached the same conclusion included Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998; Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999. In those cases, as in Marshall v Spent (supra) I followed the decision of the Full Court of the Supreme Court of South Australia in Police v Cadd (1997) 69 SASR 150, where the majority of the court of five justices considered that imprisonment was appropriate for the ordinary case of driving whilst disqualified and that the offence of driving whilst disqualified was of such a type and tends to be committed in circumstances such that cases in which the circumstances of the offence supports a suspension of sentence will be unusual. I relied particularly upon the observations of Doyle CJ (at 167 - 168) to the effect that
(Page 8)
- circumstances justifying suspension are unlikely to be found in routine or run of the mill cases, although individual consideration must, of course, be given to all matters and a suspended sentence may, in exceptional circumstances, be imposed.
12 In all the cases I have decided in this area, I have consistently taken the view that a suspended sentence will always be open, relying particularly upon what was said in R v Liddington (1997) 18 WAR 394 per Steytler J at 406. His Honour there set out the factors to be considered in relation to the question of whether a sentence of imprisonment should be suspended, detailing a wide range of criteria. Nothing said in any cases since that decision has altered those valuable observations.
13 The decision of the High Court in Dinsdale v The Queen (2000) 74 ALJR 1538 has altered the approach to the question of whether or not a finite term of imprisonment should be served immediately or whether it is appropriate to suspend it. Gleeson CJ and Hayne J said at [15]:
"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."
14 Further, Kirby J at [85] said:
"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the
(Page 9)
- circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment."
15 In the light of the decision in Dinsdale v The Queen (supra), the question of whether, in a particular case, a sentence of imprisonment should be suspended requires a slightly different approach. I stress that I made it clear in the earlier cases that a suspended sentence of imprisonment will always be open in the particular circumstances of a case, pointing out in Marshall v Spent (supra) (at 574 - 575) that, although a sentence of imprisonment will ordinarily be appropriate for repeatedly driving under disqualification, a suspended sentence will always be open in the particular circumstances of the case. Whether it is now correct to say that a suspended sentence may only "in exceptional circumstances" be imposed is doubtful in the light of the decision in Dinsdale v The Queen. It would be preferable now to say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may a court impose a sentence of immediate imprisonment. The emphasis tended to be the other way around before the decision in Dinsdale v The Queen.
16 However, the need for deterrent sentences in relation to repeated driving under disqualification or suspension of licence is clear. As was pointed out by McKechnie J in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999, the offence is difficult to detect, has ramifications in terms of insurance and often evidences a disregard for the normal rules of society necessary when the community is so heavily dependent upon motor vehicles.
17 In the present case, the learned Magistrate did not have before him all of the material which has been put before me on the hearing of this appeal. In particular, he did not have the letter written by the applicant's employer, to which I have referred. This fact and the fact that the applicant has already served one month of imprisonment, leads me to the view that there are reasons sufficient to justify a review of the decision of the learned Magistrate within the meaning of s 186(1)(b) of the Justices Act 1902. Further, the learned Magistrate did approach the matter in a way which, in the light of the decision in Dinsdale v The Queen can now be considered to be inappropriate.
(Page 10)
18 In these circumstances, I was prepared to allow the appeal and substitute the sentence of imprisonment to be served immediately for a suspended sentence operative from 26 June 2001.
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