Dixon v McNevin

[2018] WASC 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIXON -v- MCNEVIN [2018] WASC 240

CORAM:   MCGRATH J

HEARD:   31 JULY 2018

DELIVERED          :   10 AUGUST 2018

FILE NO/S:   SJA 1010 of 2018

BETWEEN:   JASON ANTHONY DIXON

Appellant

AND

ALLAN MCNEVIN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE M E SHACKLETON

File Number             :   BU 6485/2017

BU 6486/2017

BU 6487/2017

BU 1971/2016

BU 1984/2016

BU 4774/2016

Catchwords:

Criminal law - Appeal against sentence - Breach suspended sentence - Whether individual sentence for reckless driving in circumstances of aggravation manifestly excessive - Whether aggregate sentence infringed first limb of totality principle

Legislation:

Criminal Appeals Act 20014 (WA), s 8, s 9, s 9(1), s 9(2), 14
Firearms Act 1973 (WA), s 19(1)(c)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c), s 60(1A)(a)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 80(1)(b), s 80(1)(c), s 87

Result:

Leave to appeal granted on ground four
Leave to appeal not granted on grounds one, two and three
Appeal allowed
Offender resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Lawton Gillon
Respondent	:	Director of Public Prosecutions (WA)

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

Boase v Roberts [2018] WASC 45

Brown v Western Australia [2009] WASCA 74

Counsel v Glynn [2017] WASC 7

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364

Johnson v Hayter [2001] WASCA 118

Lenton v The State of Western Australia [2017] WASCA 224

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

MJS v The State of Western Australia [2011] WASCA 112

Munda v Western Australia [2013] HCA 38; (2013) CLR 600

Narkle v Hamilton [2008] WASCA 31

Reeves v Regen [2016] WASC 106

Richards v Damianopolous [2002] WASCA 159

Roffey v The State of Western Australia [2007] WASCA 246

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stone v The State of Western Australia [2010] WASCA 80

Trew v Western Australia [2004] WASCA 155

Wilhelm v The State of Western Australia [2013] WASCA 273

MCGRATH J:

Introduction

1. Mr Dixon was serving a 23 month term of imprisonment suspended for 18 months that was imposed for three offences (the first offences).  As a consequence of committing further offences (the new offences), Mr Dixon was sentenced to serve 22 months of the suspended term of imprisonment.  In addition, cumulative terms of imprisonment of totalling 14 months were imposed in respect of the new offences.  Therefore, the total effective sentence imposed was 3 years' imprisonment.

2. Mr Dixon now seeks leave to appeal the sentence on the ground that the sentencing magistrate erred in concluding that it would not be unjust that Mr Dixon serve 22 months of the previously suspended term of 23 months' imprisonment.  Mr Dixon also appeals the term of imprisonment imposed for one of the new offences, being reckless driving in circumstances of aggravation, contending that the term of imprisonment imposed is manifestly excessive.  Mr Dixon also appeals the overall sentence on the ground that the aggregate sentence infringed the first limb of the totality principle.

3. For the following reasons, I have determined that the overall sentence imposed does breach the first limb of the totality principle.  Therefore, leave to appeal should be granted and the appeal is allowed.

4. In these reasons for decision, I will consider the following:

   (a)The magistrates court proceedings.

   (b)The grounds of appeal.

   (c)An assessment of the merits of the appeal.

The Magistrates Court proceedings

1. On 3 March 2017, Mr Dixon appeared before Magistrate Mahon to be sentenced for the first offences.  The first offences and the sentences imposed are outlined in the table below.

Date	Charge No	Offence	Max Penalty/ Summary	Sentence imposed
14/4/16	BU1971/2016	Possession of firearm aggravation (s 19(1)(c) Firearms Act)	7 years / 3 years' imprisonment or $12,000 fine	9 months' imprisonment (head sentence)
14/4/16	BU1984/2016	No authority to drive (s 49(1)(a) Road Traffic Act 1974)	18 months' imprisonment	7 months' imprisonment (cumulative)
9/8/16	BU4774/2016	No authority to drive (s 49(1)(a) Road Traffic Act)	18 months' imprisonment	7 months' imprisonment (cumulative)
Total effective sentence				23 months' imprisonment, suspended for 18 months

1. The facts upon which Mr Dixon was convicted and sentenced by Magistrate Mahon were outlined to the court and accepted by his counsel.[1]  In short, Mr Dixon's drivers licence had been suspended on 11 March 2011 until 19 February 2021.[2] On 14 April 2016, Mr Dixon drove his vehicle whilst not being authorised to drive contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA). On 9 August 2016, Mr Dixon drove his vehicle whilst not being authorised to drive contrary to s 49(1)(a) of the Road Traffic Act.[3]  On 14 April 2016, police officers executed a search warrant at Mr Dixon's residence at which time a silver coloured Bruni handgun, with the serial number removed, was located in a grey balaclava.[4]

   [1] ts 5 - 7 (3/3/2017) (sentencing hearing).

   [2] ts 6 (3/3/2017) (sentencing hearing).

   [3] ts 6 (3/3/2017) (sentencing hearing).

   [4] ts 6 (3/3/2017) (sentencing hearing).

2. Magistrate Mahon accepted that whilst the firearm was a curio, the fact that it did not have a serial number was an aggravating factor.[5]  Magistrate Mahon observed that Mr Dixon, whilst having a 'dreadful record' did have some possibility for rehabilitation.  Therefore, Magistrate Mahon determined that a suspended sentence provided 'an opportunity' to Mr Dixon but that the 'ball was squarely in his court.'[6]

   [5] ts 5 (3/3/2017) (sentencing remarks).

   [6] ts 5 (3/3/2017) (sentencing remarks).

3. On 13 December 2017, Mr Dixon was charged with the new offences.  On 29 January 2018, Mr Dixon entered pleas of guilty to the new offences in the Bunbury Magistrates Court and therefore, the suspended terms of imprisonment were activated.  Magistrate Shackleton imposed the following sentences for the new offences and for the first offences upon resentencing:

Date	Charge No	Offence	Max Penalty	Sentence imposed
13/12/17	BUN6485/17	No authority to drive (s 49(1)(a) Road Traffic Act 1974)	18 months' imprisonment (S49(3)(c) applies)	7 months' imprisonment (concurrent)
13/12/17	BUN6486/17	Failing to comply with a direction to stop (s 39, s 44 Road Traffic (Administration) Act 2008)	2 years' imprisonment	$500 fine
13/12/17	BUN6487/17	Reckless driving to escape pursuit aggravation (s 60(1A)(a) Road Traffic Act)	5 years' imprisonment/ 2 years' imprisonment	14 months' imprisonment (cumulative)
14/4/16	BU1971/2016 Breach	Possession of firearm aggravation (s 19(1)(c) Firearms Act)	7 years / 3 years' imprisonment or $12,000 fine	8 months' imprisonment (cumulative)
14/4/16	BU1984/2016 Breach	No authority to drive (s 49(1)(a) Road Traffic Act 1974)	18 months' imprisonment (S49(3)(c) applies)	7 months' imprisonment (cumulative)
9/8/16	BU4774/2016 Breach	No authority to drive (s 49(1)(a) Road Traffic Act)	18 months' imprisonment (S49(3)(c) applies)	7 months' imprisonment (cumulative)
Total effective sentence				3 years' immediate imprisonment

1. On 29 January 2018, the facts for the new offences were outlined by the prosecutor and accepted by Mr Dixon, in the following terms:[7]

   At about 8.41 am on Wednesday, 13 December last, the accused has driven a black Holden sedan, registration 1GGV 941, south on Garfield Drive in Australind near Chapel Drive.  The accused was sighted entering ‑ sorry.  The accused has reversed out of a driveway which was parked at 122 Leschenault Parade.  He has reversed out of the driveway of this address.  He has driven east along Leschenault Drive, heading south.  At this point, police attempted to stop the accused, engaging the police vehicle's emergency lights and sirens.

   The accused has refused to stop immediately and has accelerated away from police.  At the time, the accused was in the stipulated school zone (indistinct) metres away from the pick‑up and drop‑off point to the Parkfield Primary School.  Further to this, the time of the offence was within the 40 kilometre school zone speed‑restriction timeframe.  The accused drove at speed towards Chapel Drive.  He has turned left into Chapel Drive off Garfield Way, with police now pursuing.

   The accused has again accelerated away from the police on Chapel Drive, swerving several times to the incorrect side of the road before coming back to the left.  At one point whilst crossing the opposite side of the road, the accused was forced to travel around a road island on the incorrect side of the road.  At the time, persons could be seen on the front verge of their properties.  This is a residential area zone, a 50 kilometre speed limit, sir.

   The accused continued to drive in this manner, moving to the wrong side of the road, accelerating in such a manner that the vehicle has lost traction on more than one occasion.  Police continued to pursue the accused, as the vehicle he was driving began to lose power.  The accused slowed the vehicle, again steering to the incorrect side of the road, mounting the front verge of a residential house.  The accused has exited the driver door of his vehicle, leaving it in drive gear position, and he ran towards 20B Hanks Way.

   The vehicle the accused had been driving continued under its own power down Chapel Drive for several hundred metres before impacting into a tree on the front yard of another residential property, causing damage.  He was pursued on foot by the officers before being taken into custody at the rear of 28 Chapel Drive in Australind.  At the time of the driving, he was driving under court‑imposed suspension.

   [7] ts 4 - 5 (29/1/2018).

2. The magistrate considered that the reckless driving offence was serious and that both personal and general deterrence were highly relevant sentencing considerations.[8]  His Honour found that the fact that the offences were committed whilst Mr Dixon was subject to a suspended term of imprisonment was an aggravating factor.[9]

   [8] ts 11 ‑ 12 (29/1/2018).

   [9] ts 11 (29/1/2018).

3. His Honour allowed a 25% discount for the plea which was entered at the first reasonable opportunity, pursuant to s 9AA of the Sentencing Act 1995 (WA).[10]

   [10] ts 11 (29/1/2018).

4. His Honour stated, in respect of the suspended terms of imprisonment, that the court was obliged to impose the suspended term unless it would be unjust to do so in all the circumstances that had arisen or become known since the suspended term was imposed.[11]  The magistrate found that there was no reason why the entire period of suspension should not be served.[12]  However, the magistrate reduced the term of imprisonment imposed for the possession of firearm offence from 9 months to 8 months' imprisonment to take into account time spent in custody.[13]  The magistrate also imposed a permanent disqualification of Mr Dixon's licence.[14]

   [11] ts 10 (29/1/2018).

   [12] ts 10 (29/1/2018).

   [13] ts 10 (29/1/2018).

   [14] ts 12 (29/1/2018).

Appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[15]  An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[16]

   [15] Criminal Appeals Act 2004 (WA), s 9(1).

   [16] Criminal Appeals Act, s 8.

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[17]  The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[18]

   [17] Criminal Appeals Act, s 9(2); Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P Wheeler & Roberts‑Smith JJA).

   [18] Criminal Appeals Act, s 14.

3. The notice of appeal raises four grounds, being:

   1.The learned sentencing Magistrate erred by:

   (i)    failing to allow the Appellant any concession for the nine month period of the suspended sentence already completed by the time of the Appellant's arrest; and

   (ii)    activating the suspended sentence in its entirety.

   2.The sentence of 14 months imposed on the charge under section 49 of the Road Traffic Act was manifestly excessive in all the circumstances of the case.

   3.The discount of one month to the overall effective sentence to reflect time spent in custody since the Appellant's arrest was manifestly inadequate.

   4.The learned Magistrate erred in imposing a total effective head sentence of three years immediate imprisonment:

   (i)    by failing to have any or any sufficient regard to the totality principle; and

   (ii)    by imposing a total effective head sentence that was manifestly excessive in all the circumstances of the case.

4. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[19]

   [19] Criminal Appeals Act, s 14.

5. In considering the grounds of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[20]

   [20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Ground one

1. I now turn to ground one, being the contention that the magistrate erred in concluding that it would not be unjust to order Mr Dixon serve all or part of the previously suspended sentence of imprisonment.

2. Section 80(1) of the Sentencing Act provides:

   (1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:

   (a)     unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

   (b)     unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

   (c)     unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

   (d)     it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment.

3. In considering the circumstances which have arisen since the imposition of the suspended term, the court may have regard to the length of the suspended term of imprisonment, the circumstances of the offence for which the suspended sentence was imposed and factors personal to the offender which may provide a context for the consideration of the circumstances which have arisen since the suspended sentence was imposed.[21]

   [21] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364.

4. Section 80(1) of the Sentencing Act must be read with s 80(3), which provides:

   A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

5. Therefore, the issue that the appellate court must determine is whether it was open to the magistrate at first instance to decide that the service of the suspended sentence was unjust.

6. Section 80 of the Sentencing Act was considered in Hall v The Queen, where Murray J (with whom Kennedy & Pidgeon JJ agreed) stated:[22]

   [T]he section requires the Judge to order service of the suspended imprisonment unless it would be unjust to do so. On appeal the applicant carries the forensic onus to persuade the court that a Judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the Judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the Judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused.

   As to whether it would or would not be unjust to make the order to which by s 80 the Judge is primarily directed, in R v Holcroft [1997] 2 Qd R 392 at 394 Fitzgerald P said:

   All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.

   All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment.  But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P at 394, Lee J at 394 ‑ 5 and Fryberg J at 404 ‑ 5.  On the same general consideration reference may be made to R v Holley Ex p. Attorney-General [1997] 2 Qd R 407 per de Jersey J at 410, Lee J at 416 and 419 and Fryberg J at 425.

   [22] Hall v The Queen [31] ‑ [33].

7. The observations of Murray J in Hall v The Queen were approved and followed in Trew v The State of Western Australia[23] and Brown v The State of Western Australia.[24]

   [23] Trew v Western Australia [2004] WASCA 155.

   [24] Brown v The State of Western Australia [2009] WASCA 74.

8. I am mindful, in determining ground one, that courts will not readily interfere with a decision of a judicial officer at first instance under s 80 of the Sentencing Act for the reason that the non‑revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences.[25] However, s 80 clearly contemplates that there will be circumstances in which it is proper to refrain from revoking the suspension of the sentence or that only part of the suspended term of imprisonment should be imposed.

   [25] Hall v The Queen [35].

1. In support of the contention that the order requiring him to serve the suspended term was unjust, Mr Dixon relied upon the fact that he had served 8 months' imprisonment prior to the breach offences being committed. Mr Dixon states that he had effectively served one of the seven-month sentences for driving under disqualification prior to the commission of the breach offences.  However, the breach did not occur late in the suspension period.  The magistrate exercised his discretion after carefully considering all the relevant circumstances including the timing of the breach.[26]

   [26] ts 10 (29/1/2018).

2. I consider that it was within his Honour's discretion to require Mr Dixon to serve 22 months of the suspended term.   It cannot be said that such an order was unjust.  Whilst it was within the magistrate's discretion, ultimately the issue is whether, by requiring the term of 22 months to be served, the total effective sentence imposed for all the offences breached the totality principle.  I will consider this issue when determining ground four.

3. Accordingly, leave on ground one is not granted. 

Ground two

1. By ground two Mr Dixon contends that the 14 month term of imprisonment imposed for the reckless driving offence in circumstances of aggravation was manifestly excessive. 

2. The ground therefore asserts implied error.  That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires that the court be satisfied that the sentence is unreasonable or plainly unjust.[27]

   [27] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

3. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long.  Mr Dixon contends that the length of the term of imprisonment was manifestly excessive.  To determine whether a sentence is excessive involves considering the maximum sentence imposed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[28]

   [28] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

4. In considering this ground I am mindful that pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or, if the protection of the community requires it. Further, s 6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating and mitigating factors and the vulnerability of any victim of the offence.

5. The maximum penalty for the offence was 2 years' imprisonment when dealt with summarily and 5 years' imprisonment upon indictment.  Whilst the maximum sentence that the magistrate could impose was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum and not merely the jurisdictional limit in assessing the seriousness of the offence.[29] 

   [29] Johnson v Hayter [2001] WASCA 118.

6. The magistrate gave Mr Dixon a 25% discount in mitigation for entering a plea of guilty at the first reasonable opportunity.[30]  The magistrate referred to Mr Dixon's criminal record, observing that whilst it did not aggravate the offending, it was extensive and therefore it afforded Mr Dixon no mitigation. 

   [30] ts 11 (29/1/18).

7. The offending was serious. It involved driving recklessly in a school zone at 8.41 am on a school day.  The offending occurred in close proximity to the student drop‑off points where the speed limit in the school zone was 40 km per hour.  Mr Dixon drove the car into the next residential street where he repeatedly swerved onto the wrong side of the road.  Ultimately, Mr Dixon abandoned his vehicle whilst it was still moving.  Whilst the incident lasted only minutes it did involve a police pursuit.  Mr Dixon was trying to avoid police apprehension.  Self‑evidently he did so because he was driving without a driver's licence and was therefore in breach of his suspended sentence.  The magistrate observed that committing the offence whilst serving a suspended term of imprisonment was an aggravating factor.[31]

   [31] ts 11 (29/1/18).

8. There is no identifiable tariff for the offence of reckless driving.  The statutory scheme is intended to accommodate the wide variety of conduct, involving varying degrees of culpability, which can constitute the offence of reckless driving.[32]  Whilst the decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents.  In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[33]

   [32] Richards v Damianopolous [2002] WASCA 159, [17] (McLure P).

   [33] Hili v The Queen [2010] HCA; (2010) 242 CLR 520 [53] - [54].

9. Mr Dixon referred to a number of comparative cases: Richards v Damianopoulos, Reeves v Regan,[34] Wilhelm v The State of Western Australia,[35] Counsel v Glynn,[36] Lenton v The State of Western Australia,[37] Boase v Roberts.[38]  I have considered those cases.  The only appellate decision that has considered the offence of aggravated reckless driving whilst being pursued by the police since the introduction of the statutory minimum penalty on 14 January 2017 is Lenton v The State of Western Australia.

   [34] Reeves v Regen [2016] WASC 106.

   [35] Wilhelm v The State of Western Australia [2013] WASCA 273.

   [36] Counsel v Glynn [2017] WASC 7.

   [37] Lenton v The State of Western Australia [2017] WASCA 224.

   [38] Boase v Roberts [2018] WASC 45.

10. In Lenton v The State of Western Australia a term of imprisonment of 12 months was imposed for the offence of aggravated reckless driving.  In Lenton v The State of Western Australia a total effective sentence of 8 years' imprisonment was imposed for the offending, which also included serious drug offending.  The authority of Lenton v The State of Western Australia does not support Mr Dixon's contention that his sentence was manifestly excessive.

11. I consider that the length of the term of imprisonment was not manifestly excessive.  The term that was imposed is most understandable in light of the seriousness of the offending and Mr Dixon's antecedents.

Ground three

1. By ground three, Mr Dixon contends that the magistrate erred by granting a discount of one month to the overall effective sentence for time spent in custody awaiting sentencing.  Mr Dixon was arrested on 13 December 2017 and remained in custody on remand until he was sentenced on 29 January 2018. 

2. In the written submissions filed on behalf of Mr Dixon, it is contended that given that Mr Dixon was made eligible for parole, the one month discount on remand was worth two months on the head sentence.[39]  That proposition is erroneous.  At the hearing, counsel disavowed that submission.  Rather, the contention made at the hearing of the appeal is that the magistrate did not afford credit for the entire time spent in custody awaiting sentencing.

   [39] Appellant's Submissions [51].

3. The court has a discretion as to whether to take into account time spent in custody.[40] The court may take that time into account by either reducing the term by an appropriate period or by ordering that the term it imposes be taken from the date when custody began or a later date that is not later than the date of the sentence.[41]  The manner in which the discretion is exercised will depend upon the individual circumstances of each case.[42]  A failure to give full credit for time spent in custody may, depending upon the circumstances, be unjust.[43]

   [40] Narkle v Hamilton [2008] WASCA 31 [40].

   [41] Sentencing Act, s 87.

   [42] Narkle v Hamilton [40].

   [43] MJS v The State of Western Australia [2011] WASCA 112.

4. In respect to an activated suspended term of imprisonment, there is no power to backdate any term of imprisonment that is imposed.  However, an offender may be given credit for time spent on remand awaiting sentencing for an activated suspended sentence.  This may be achieved in two ways.  First, the sentencing magistrate may reduce the term of imprisonment imposed for the activating offences.[44]  Secondly, the sentencing magistrate may reduce the term of imprisonment imposed in respect of the suspended term of imprisonment offence.[45]

   [44] Sentencing Act, s 87(c).

   [45] Sentencing Act, s 80(1)(b).

5. The magistrate observed that the court did not have the power to backdate the activated suspended term of imprisonment but was empowered to backdate the sentence imposed for the new offences.[46]  His Honour determined to afford credit for the time spent in custody in two ways.  First, his Honour reduced the term of imprisonment imposed on one of the first offences, being the possession of the firearm offence.  The magistrate reduced the previous term of 9 months to 8 months' imprisonment.[47] Secondly, the magistrate imposed a term of imprisonment of 7 months in respect of the new offence of driving whilst under disqualification.[48]  His Honour then stated that the term of 7 months' imprisonment was to be served concurrently for reasons of totality and further, 'I do that again also because I can't backdate the suspended term of imprisonment sentences which I start today.'[49]  Therefore, the magistrate considered the issue of affording credit for the time spent in custody awaiting sentence and structured the sentence to take that period into account. 

   [46] ts 12 (29/1/2018).

   [47] ts 12 (29/1/2018); Sentencing Act, s 80(1)(b).

   [48] ts 12 (29/1/2018).

   [49] ts 12 (29/1/2018).

6. The magistrate's approach to taking into account the period in custody was without error.  Ground three is without merit and therefore, leave is not granted.

Ground Four

1. By ground four Mr Dixon contends that the total effective sentence was manifestly excessive and that the sentencing magistrate failed to have sufficient regard to the totality principle.  The ground thereby conflates the totality principle with the claim of being manifestly excessive.  Properly understood, by ground four Mr Dixon contends that the total effective sentence of 3 years' immediate imprisonment breached the first limb of the totality principle.  A claim that the totality principle has been breached asserts implied error.  Mr Dixon relies upon the first limb of the totality principle. 

2. The first limb of the totality principle requires that the total effective sentence, where an offender is being sentenced for a number of offences, bears 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.[50] The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up the all the terms that are appropriate for each of the individual offences.  The total effective sentence must be unreasonable or plainly unjust.

   [50] Roffey v The State of Western Australia [2007] WASCA 246 [24].

3. The magistrate did consider the totality principle and in so doing modified the overall term of imprisonment.[51]  However, the issue remains as to whether the overall sentence breaches the totality principle.

   [51] ts 11 (29/1/2018).

4. The maximum penalty for the offences are outlined in the two tables above. 

5. I have considered the term of imprisonment imposed for the reckless driving offence when determining ground two.  Mr Dixon's offence of reckless driving is serious given the circumstances of the offending, which is marked by the police pursuit in a school zone.

6. The offence of possessing an unlicensed firearm in circumstances of aggravation is one where general deterrence is a major sentencing consideration and personal circumstances play a lesser role.[52] The sentencing magistrate accepted that Mr Dixon did not have the firearm for nefarious purposes but rather as a collector. 

   [52] Stone v The State of Western Australia [2010] WASCA 80.

7. Mr Dixon's criminal record is extensive.  Mr Dixon's record includes offences of drug offending, grievous bodily harm and dishonesty offences.  Upon my reading of Mr Dixon's criminal record there are now a total of 25 convictions for the offence of no authority to drive due to licence suspension.  There is a further conviction in 2005 for driving without a licence.  There are other significant driving offences including convictions for reckless driving, failing to stop, and driving with prescribed illicit drugs.   The striking characteristic of Mr Dixon's conduct is that it is persistent and demonstrates an unrepentant disregard of the law.  Despite being disqualified from driving Mr Dixon continues to drive.  He did so again in December 2017.  When approached by the police he engaged in aggravated reckless driving in a school zone during child drop off time in order to evade the consequences of his actions. 

8. The sentence to be imposed must reflect the seriousness of the offending.  The question though is whether the overall sentence of 3 years' imprisonment is disproportionate to the criminality involved in the offending.  The individual sentences imposed were within discretion.  However, after careful reflection, I consider that the overall term of imprisonment of 3 years does breach the first limb of the totality principle.  In reaching that conclusion I have considered all relevant factors that bear on the determination of the appropriate sentence.  A lesser total effective sentence must be imposed.  Ground four is upheld.

Conclusion

1. I have determined that leave should be granted on ground four and that the appeal should be allowed.  The sentence of the magistrate should be set aside and Mr Dixon must be resentenced.  There must be a modification of the overall sentence imposed for totality reasons.  An appropriate reduction in the overall sentence is 5 months.  I will order that the term of imprisonment of 8 months, cumulative, that was imposed for the possession of the firearm with aggravation offence be set aside and that a term of 3 months' imprisonment, cumulative, be imposed in lieu thereof.  Otherwise, the individual sentences imposed by Magistrate Shackleton are not disturbed.  Therefore, the total effective sentence is 2 years and 7 months' imprisonment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH

10 AUGUST 2018