Donnachy v Riegert

[2004] WASCA 48

DONNACHY -v- RIEGERT & ANOR [2004] WASCA 48

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 48
Case No:	SJA:1144/2003	Heard:	25 FEBRUARY 2004
Coram:	ROBERTS-SMITH J	Delivered:	18/03/04
No of pages:	38	Judgment Part:	1 of 1
Result:	Appeal SJA 1144 of 2003 allowed, Appeal SJA 1143 of 2003 allowed in part, otherwise dismissed
Category:	A
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Parties:	MARTINE CELESTE DONNACHY CHARLES DOUGLAS RIEGERT ASHLEY GRAHAM KEITH GOY
Catchwords:	Criminal law and procedure Appeal Justices Traffic offences Eighth conviction for driving under suspension Breach of suspended sentence of imprisonment order for similar offence Pleas of guilty Defendant unrepresented Sentences of imprisonment Whether should have been given adjournment for legal advice Criminal law and procedure Appeal Justices Escape legal custody Sentence Principles Criminal law and procedure Appeal Justices Traffic offences Driving under suspension Subsequent offence Fact that appellant already serving a sentence of imprisonment for similar offence
Legislation:	Sentence Administration Act 2003 (WA), s 8(2)
Case References:	Betts v Hardcastle (2001) 23 WAR 559 Chinnery v Hansen (2001) 125 A Crim R 426 Cross v Cook [2001] WASCA 242 Dietrich v The Queen (1992) 177 CLR 292 Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 Furtak v Timmers [2001] WASCA 65 Griekspoor v Scott (2000) 23 WAR 530 Jones v Williams, unreported; SCt of WA; Library No 920652; 7 December 1992 Lowndes v The Queen (1999) 195 CLR 665 Nevermann v The Queen (1989) 43 A Crim R 347 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 R v Grein [1989] WAR 178 Salter v Seebohm (1972) 4 SASR 192 Voisey v Taylor, unreported; SCt of WA; Library No 8273; 30 May 1990 Walker v The Queen (1998) 101 A Crim R 152 Weinel v Fedcheshen (1995) 65 SASR 156 Western Australia v Landers (2000) 22 WAR 278 Wood v Marsh [2003] WASCA 95 Zammit v Illich [2003] WASCA 88 Chan v The Queen (1989) 38 A Crim R 337 Cooling v Steel (1971) 2 SASR 239 Dinsdale v The Queen (2000) 202 CLR 321 Gavin v The Queen (1992) 6 WAR 195 Hall v The Queen (1999) 21 WAR 364 Higgins v Robinson [2000] WASCA 311 House v The King (1936) 55 CLR 499 King v Lankford [2000] WASCA 214 Nguyen v The Queen (2001) 118 A Crim R 519 R v Hicks (1996) 89 A Crim R 333 R v Liddington (1997) 18 WAR 394 R v Peterson [1984] WAR 329 R v Tait (1979) 46 FLR 386 Schagen (1993) 65 A Crim R 500

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DONNACHY -v- RIEGERT & ANOR [2004] WASCA 48 CORAM : ROBERTS-SMITH J HEARD : 25 FEBRUARY 2004 DELIVERED : 18 MARCH 2004 FILE NO/S : SJA 1144 of 2003

Consolidated with SJA 1143 of 2003 on 23 December 2003

BETWEEN : MARTINE CELESTE DONNACHY

Appellant

AND

CHARLES DOUGLAS RIEGERT
First Respondent

ASHLEY GRAHAM KEITH GOY
Second Respondent

Catchwords:

Criminal law and procedure - Appeal - Justices - Traffic offences - Eighth conviction for driving under suspension - Breach of suspended sentence of imprisonment order for similar offence - Pleas of guilty - Defendant unrepresented - Sentences of imprisonment - Whether should have been given adjournment for legal advice

Criminal law and procedure - Appeal - Justices - Escape legal custody - Sentence - Principles



(Page 2)

Criminal law and procedure - Appeal - Justices - Traffic offences - Driving under suspension - Subsequent offence - Fact that appellant already serving a sentence of imprisonment for similar offence

Legislation:

Sentence Administration Act 2003 (WA), s 8(2)

Result:

Appeal SJA 1144 of 2003 allowed

Appeal SJA 1143 of 2003 allowed in part, otherwise dismissed

Category: A

Representation:

Counsel:

Appellant : Mr H Sklarz
First Respondent : Mr T C Russell
Second Respondent : Mr T C Russell

Solicitors:

Appellant : Henry Sklarz
First Respondent : State Solicitor
Second Respondent : State Solicitor

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

Betts v Hardcastle (2001) 23 WAR 559
Chinnery v Hansen (2001) 125 A Crim R 426
Cross v Cook [2001] WASCA 242
Dietrich v The Queen (1992) 177 CLR 292
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Furtak v Timmers [2001] WASCA 65
Griekspoor v Scott (2000) 23 WAR 530
Jones v Williams, unreported; SCt of WA; Library No 920652; 7 December 1992


(Page 3)

Lowndes v The Queen (1999) 195 CLR 665
Nevermann v The Queen (1989) 43 A Crim R 347
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
R v Grein [1989] WAR 178
Salter v Seebohm (1972) 4 SASR 192
Voisey v Taylor, unreported; SCt of WA; Library No 8273; 30 May 1990
Walker v The Queen (1998) 101 A Crim R 152
Weinel v Fedcheshen (1995) 65 SASR 156
Western Australia v Landers (2000) 22 WAR 278
Wood v Marsh [2003] WASCA 95
Zammit v Illich [2003] WASCA 88

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Cooling v Steel (1971) 2 SASR 239
Dinsdale v The Queen (2000) 202 CLR 321
Gavin v The Queen (1992) 6 WAR 195
Hall v The Queen (1999) 21 WAR 364
Higgins v Robinson [2000] WASCA 311
House v The King (1936) 55 CLR 499
King v Lankford [2000] WASCA 214
Nguyen v The Queen (2001) 118 A Crim R 519
R v Hicks (1996) 89 A Crim R 333
R v Liddington (1997) 18 WAR 394
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
Schagen (1993) 65 A Crim R 500


(Page 4)

1 ROBERTS-SMITH J: These are two appeals against sentence imposed by separate Magistrates in the Perth and Joondalup Courts of Petty Sessions on 17 September and 17 October 2003 respectively.

2 On 17 September 2003 the appellant pleaded guilty before His Worship Mr Heaney SM to one charge of failing to stop, one charge of dangerous driving and one count of driving whilst under suspension.

3 His Worship imposed a fine of $100 for the offence of failing to stop and sentenced the appellant to 9 months imprisonment concurrent on each of the dangerous driving and driving under suspension offences. The appellant then having also admitted a breach of an order suspending a sentence of 6 months imprisonment, his Worship also ordered her to serve that term concurrently with the 9 months.

4 On 17 October 2003 the appellant pleaded guilty in the Joondalup Court of Petty Sessions to a charge of escaping legal custody and also to a number of driving offences which had been committed on 3 January 2003 - that is prior to the offences for which she had been sentenced on 17 September 2003. The earlier offences were misleading police, driving under suspension and speeding. Her Worship Ms Musk SM sentenced the appellant to 6 weeks imprisonment on the escape legal custody conviction, cumulative on the sentences already being served, and 2 months imprisonment on the misleading police conviction, concurrent with those in respect of the other offences. She imposed a fine of $100 for the speeding offence. That last is not the subject of appeal.

5 By applications filed 12 December 2003, the appellant sought extensions of time and leave to appeal in respect of each of the sentences imposed on 17 September and 17 October 2003 respectively. The notice in respect of the October sentences states the sentence for escaping legal custody was 16 weeks - it was actually 6 weeks.

6 The applications were supported by an affidavit of the applicant sworn 11 December 2003, an affidavit of one Julie Banbury sworn the same date and an affidavit of Allan Boon sworn 22 December 2003.

7 An extension of time and leave to appeal were granted by Heenan J on 23 December 2003. His Honour also ordered that the two appeals be consolidated.

8 As reference was made to the affidavits on the hearing of the appeal without objection, it is convenient that I do so at this point.

(Page 5)

9 The appellant deposed that on 17 December 2003 she was arrested by police in relation to a number of traffic matters and brought before the Perth Court of Petty Sessions that day, still in custody. She had not received legal advice and did not have a lawyer representing her when she appeared before the learned Magistrate to answer the charges. At the time she knew her fiancé and employer, Mr Alan Boon, was present in court and she was hopeful that he would speak on her behalf.

10 The appellant was then an active drug addict and was affected by drugs at the time of her appearance. She stated she was in a very poor mental state and was having hallucinations and delusions.

11 When the charges were put to her she pleaded guilty to each, but did not understand that her convictions would breach her previous suspended sentence.

12 She stated that she was not given an opportunity to obtain legal advice nor representation, did not appreciate the severity of the matter and did not expect a term of imprisonment. She was "shocked" to receive the terms of 9 months and 6 months imprisonment.

13 According to the appellant, within a few days of being sentenced and with the assistance of her fiancé, she sought legal advice in relation to the prospects of appealing the sentence. At the time her earliest release date was 31 January 2004.

14 However, before she made a decision to appeal she was transferred to the low security women's prison at Nyandi on 26 September 2003.

15 Upon arriving at Nyandi Women's Prison she was allotted a room with four other inmates, who intimidated, harassed and assaulted her. Despite making numerous complaints to the immediate authorities and requests for transfer and protection, no action was taken to either transfer her or to secure her safety, except to allow her to sleep in the corridor outside the room on one night.

16 The appellant deposed that in the following day she continued to suffer at the hands of the inmates and she made numerous telephone calls to her fiancé and to her mother. She was constantly in fear and crying. Within days she became desperate and was contemplating suicide merely to get away from the abuse and terror caused by the three inmates with whom she was compelled to share the accommodation.

(Page 6)

17 By 1 October 2003 she was unable to tolerate the situation any longer and left the grounds of the prison, thereby making her escape.

18 She stayed at large for 12 days, during which time she regained her composure and emotional strength and surrendered voluntarily to the Belmont Police Station on 13 October 2003.

19 On 17 October she was brought before the Joondalup Court of Petty Sessions in respect of the charge of escaping legal custody and the prior traffic offences committed on 3 January 2003.

20 On that occasion the appellant was represented by her solicitor. She pleaded guilty to all the charges and her solicitor presented a plea in mitigation on her behalf. She deposed that "however a number of relevant and important matters were omitted by my lawyer, and [were] not before the court …"

21 The appellant deposed that because she was serving a term of imprisonment from 17 September, the Magistrate presiding on 17 October "seemed to follow suit" and imposed further terms of imprisonment to be served concurrently, except for the escaping legal custody offence for which she was sentenced to 16 weeks (sic: 6 weeks) imprisonment to be served cumulatively on her other sentences.

22 In her affidavit Ms Banbury deposes that she is currently serving a prison sentence at Bandyup Women's Prison. She is not a friend of the appellant. On 26 September 2003 she and the appellant were transferred from Bandyup Women's Prison to Nyandi Women's Prison in Bentley. They were both allocated to a room they had to share with three other female inmates. Ms Banbury state that from the moment they arrived, the other inmates intimidated and severely harassed the appellant in her presence. They threatened that they were going to "kick her head in" and "to bash her". She was subjected to threats and abuse constantly throughout the first day. Ms Banbury deposes that the appellant complained to the authorities on many occasions but to no avail.

23 On the first night the appellant was allowed to sleep in the hallway outside the room for her own protection and safety. However, whilst she was sleeping in the corridor, the other inmates shouted they would kick her head in at the first opportunity. Ms Banbury was moved the next day to a cell with one other inmate but the appellant was made to stay in the same room. Ms Banbury continued to witness the appellant's abuse from the other inmates throughout the short time that she spent at Nyandi. She deposes that to her knowledge the appellant remained in the same room

(Page 7)

with the other inmates for the whole time prior to her escape on 1 October 2003.

24 In his affidavit Mr Boon deposes that he is the applicant's fiancé and he was made aware that she had been arrested for traffic matters on the morning of 17 September 2003. He immediately went to the court and made arrangements with the court orderly that he would speak on the appellant's behalf. At that stage he was unaware whether the appellant was able to obtain any legal advice, but to his knowledge she did not have a solicitor available to represent her in any event.

25 He anticipated that the appellant would ask that her matters be remanded for legal advice and to that extent he expected to be able to address the court and assist the appellant to obtain a remand for legal advice and to seek bail.

26 He deposes that he was ready, willing and able to be a surety should bail have been granted to the appellant.

27 He states that he was prohibited from visiting and speaking to the appellant prior to her court appearance and that when she was presented before the court, he immediately observed that she was clearly still suffering from drug withdrawal and the flu and she appeared to not "be herself". She appeared very pale in colour and unsteady on her feet.

28 Mr Boon deposes that when the appellant was presented before the court and the charges were read out, he was shocked to hear her enter pleas of guilty as he was aware she was clearly unprepared and incapable of representing herself properly in the circumstances.

29 According to Mr Boon he endeavoured to speak to the Magistrate on a number of occasions, but was told by the court orderly to return to his seat and to keep quiet. He was however, able to intervene briefly in the latter part of the court proceedings to try and tell his Worship that the appellant had employment and was well able to pay a fine and that he would help her in that regard. He states however, that he was prohibited from speaking on behalf of the appellant and advising the court of her personal factors, and particularly of her poor mental condition and the need to obtain a pre-sentence report and also a psychological report.

30 In relation to that last, Mr Boon deposes that to his knowledge the appellant has received psychological treatment in the past and her drug addiction has severely affected her mental state. He annexed to his affidavit a copy of a psychological report dated 2 October 1999 from a

(Page 8)

clinical psychologist, Mr Neel le Roux who stated that the appellant suffers psychiatric illness and that imprisonment would only aggravate her mental condition.

31 Mr Boon states that after the appellant was sentenced to 9 months imprisonment, she was first taken to Bandyup Women's Prison where he visited her regularly. She was then transferred to Nyandi Women's Prison on 26 September 2003. He states that immediately upon her transfer to Nyandi, he received numerous crisis telephone calls from her, imploring him to do something in relation to the serious abuse, intimidation and harassment she was suffering from her cell mates. He says she was constantly in tears and extremely desperate.

32 He deposes that as a result he made numerous telephone and written complaints as well as a personal visit, to Nyandi management, requesting that they urgently intervene and assist the appellant by transferring her or safeguarding her from what was going on.

33 He recalls that on the Saturday preceding the appellant's escape from legal custody, she telephoned him no less than 12 times during the day and that evening, complaining of her predicament and telling him it was intolerable.

34 It was Mr Boon who arranged for the appellant to have legal representation for her appearance and sentencing on 17 October 2003.

35 The psychological report of Mr le Roux was prepared in relation to a number of charges for traffic offences committed in August 1999.

36 According to the report, exploration during a course of psychotherapy revealed a dysfunctional and compromised childhood. The appellant's psychological development was compromised as a result of poor relationships with both her biological parents and her stepfather. Her parenting was characterised by lack of warmth, support and guidance. These shortfalls in her early childhood resulted in the appellant failing to develop appropriate interpersonal skills in certain areas and compromised her social judgment. During her teenage years she exhibited rebellious, oppositional and inappropriate behaviour in a number of instances.

37 The report continues, to observe that "this dysfunctionality" has continued to some extent into the appellant's adult life. In the interpersonal arena she finds it difficult to develop intimate relationships and to sustain them for an extended period of time. In terms of her occupational functioning, she has engaged in a diverse number of

(Page 9)

enterprises but has failed to build a career for herself in any one area. This has resulted in financial hardship for her during periods of her adult life.

38 The appellant had been undertaking psychotherapy on an intermittent basis since September 1998. Treatment included both formal psychotherapy and a number of telephone consultations. Due to financial constraints the appellant was not able to sustain treatment at an optimal level for an extended period of time.

39 Under the heading "diagnosis" the psychologist notes that the appellant's abusive history and various aspects of her conduct over a number of years "… support a diagnosis of a personality disorder". He explains that typically, such individuals exhibit a compromised ability to adhere to prevailing social norms and are highly susceptible to outside influences. They function best within a context characterised by a high incidence of positive role models, moderate social and occupational demands, and a general sense of ongoing support and containment. Long term psychotherapy is the treatment of choice.

40 The report recommended that "given that Ms Donnachy suffers a psychiatric illness" it is submitted that her compromised psychological functioning be considered in the process of sentencing. It concluded that a form of punishment, other than a term of imprisonment, should be considered, adding:

"Should Ms Donnachy be imprisoned, it is highly probable that she will return to society a more severely disturbed and socially inappropriate individual as a result of her exposure to the prevailing milieu within the prison system."

Donnachy v Riegert - SJA 1144 of 2003

41 The appellant appeals on the following grounds:

"(a) The Learned Sentencing Magistrate erred in sentencing the Applicant:

(i) Whilst she had no legal advice and was not represented by a lawyer; and,

(ii) Failed to ascertain from the Applicant that she had not received prior legal advice; and,

(Page 10)

(iii) Failed to decline to sentence the Applicant until she received legal advice and representation.

(b) The Learned Sentencing Magistrate erred in sentencing the Applicant to 9 months imprisonment, and in breaching her prior suspended sentence of 6 months imprisonment, by:-

(i) Failing to obtain a Pre-Sentence Report, as had been suggested by (sic) Prosecution; and,

(ii) Failing to listen to and hear from Mr. Allan Boon, the Applicant's fiancée (sic) and employer, present in court, in respect to sentencing options.


(c) The Sentencing Magistrate erred in imposing an immediate prison sentence, for the reasons that he did not give sufficient nor adequate consideration to the following:-

(i) The mitigating factors of the Applicant's serious drug addiction, her poor mental health and her personal antecedents; and,

(ii) The fact that the Applicant had not spent actual time in prison before; and,

(iii) Alternatives to immediate imprisonment, such as a Drug Court Program, a further suspended sentence, fines and/or Community Orders with counseling (sic) and supervision; and

(iv) That imprisonment is a sentence of last resort.


(d) The Sentencing Magistrate failed to give sufficient reasons for the sentence of imprisonment."

42 When the appellant was presented before his Worship Mr Heaney SM, matters proceeded in the following way:

"HIS WORSHIP: You're Martine Celeste Donnachy?

MS DONNACHY: Yes, your Honour (sic).

HIS WORSHIP: You've got three new charges here.

(Page 11)

MS DONNACHY: Right.

HIS WORSHIP: What do you want to do with them today?

MS DONNACHY: I would like to plead to those today, guilty, thank you.

HIS WORSHIP: The first is that on the 14th of April 2003 you, being the driver of a vehicle, registration number 1VIO 887, in Murray Street when called upon to stop your vehicle by a member of the Police Force, failed to stop. How do you plead to that charge?

MS DONNACHY: Guilty.

HIS WORSHIP: Also it is said you wilfully drove that vehicle on Murray Street, Elder Street, St Georges Terrace and Mount Street in a manner that was, having regard to all the circumstance, inherently dangerous. How do you plead to that charge?

MS DONNACHY: Guilty.

HIS WORSHIP: Also it is said that on the 14th of April 2003 you drove that vehicle on Murray Street without being the holder of the appropriate valid driver's licence for that class of vehicle was legally disentitled to hold a driver's licence. How do you plead to that charge?

MS DONNACHY: Guilty.

HIS WORSHIP: Have a seat there and we'll hear the facts.

PROSECUTOR: Sir, I don't know if you're minded to seek a pre-sentence report. The record would indicate this is her seventh driving under suspension and her third reckless. She's (sic) is currently on a suspended prison order for similar matters.

HIS WORSHIP: Well, I'll hear the alleged facts and - - I'll hear the facts now."

43 (The appellant's record of convictions shows that as at that date she had eight convictions for driving under suspension. The police prosecutor (and subsequently the learned Magistrate) spoke of seven, no doubt

(Page 12)

because the first offence was for driving whilst her licence had been automatically suspended by an accumulation of demerit points).

44 The police prosecutor then outlined the facts to the following effect.

45 At 9.55 pm on 14 April 2003, the appellant was driving a car on Milligan Street, Perth. At the intersection of Milligan and Murray Streets, she stopped her car on the left-hand side of the marked police vehicle which was stationary in the right lane at red traffic control lights. The police officers observed the appellant's car and saw that the right rear glass panel was broken. The windows of both vehicles were open and there was no interruption to the vision between the vehicles so that the appellant was clearly visible to the police. They saw her look towards them and then as the traffic lights turned green, she turned her car left into Murray Street to travel in a westerly direction contrary to the one-way traffic flow in that street. The police officers called upon her to stop and then activated the siren and lights of their vehicle in pursuit of the appellant. She drove her car west on Murray Street and then turned left along Elder Street. The officers estimated her speed at 85 to 90 kms an hour along that street which was a 50 kms an hour zone. The officers continued to pursue her. The appellant then drove through a red traffic light at the intersection of Elder and Hay Streets, still at 85 to 90 kms an hour. The police officers temporarily lost sight of her car as she rounded the kerb approaching St George's Terrace. As the officers approached the intersection of Elder Street and St George's Terrace, they saw the appellant's car to the east as it turned right out of St George's Terrace to travel along Mount Street. The police car was prevented from turning right into Mount Street by oncoming traffic and the officers lost sight of the appellant's vehicle. It was located a short time later abandoned in Mount Street. The manner of the appellant's driving caused interference to the traffic at the intersection of St George's Terrace and Mount Street. The Police Prosecutor produced a copy of the appellant's record of convictions.

46 His Worship then addressed the appellant, saying she had heard the facts and asked whether or not they were correct. She responded that:

"Yes, they are correct".

47 His Worship asked whether the appellant wished to say anything about this. The following exchange then took place:

"MS DONNACHY: Just that the reason I turned left on to a one-way street was - - well, I didn't actually realise that it was a

(Page 13)

one-way street and therefore the chase proceeded from there, for me turning on to a one-way street not realising because I haven't been to town for some time. That's all I would like to say. Yeah. I'm sorry.

HIS WORSHIP: On the 12.3.2003 you were charged with driving under suspension and reckless driving and failing to stop. You got 6 months' imprisonment that was suspended for 6 months.

MS DONNACHY: Correct.

HIS WORSHIP: Well, this happened a month later. This offence happened a month later, in April. Is that right?

MS DONNACHY: I'm not sure of the dates. No, I'm not sure, your Honour.

HIS WORSHIP: Well the 12th of March there was driving under suspension and reckless driving, for which you got 6 months' imprisonment, suspended for 6 months.

MS DONNACHY: Right.

HIS WORSHIP: A month later, on the 14th of April, the events that occurred here happened, so you've breached your suspended sentence.

MS DONNACHY: Correct, your Honour.

HIS WORSHIP: Do you want to say anything about this?

MS DONNACHY: Well, apart from apologising and not realising that I've done the breach, your Honour, and - - yeah. I can afford to pay fines and - - I'm working at the moment part-time.

HIS WORSHIP: At the time you were driving then you had previous convictions for driving under suspension as recently as the 14th of July 03. That was after this one. On this occasion, on the 14th of April, this appears to be the seventh time you drove under suspension. Well, what do you think is going to happen to you today?

(Page 14)

MS DONNACHY: I'm not quite sure, your Honour. I'm hoping that I'll be able to pay a fine and so forth and maybe do some - -

HIS WORSHIP: What makes you think that - - given that on the 12.3.03 you were given a suspended sentence for a similar offence, what makes you think that a month later when you do exactly the same thing?

MS DONNACHY: My vehicle is up for sale. It's in a yard for sale, basically, so I won't be driving again, your Honour.

HIS WORSHIP: Yes.

MS DONNACHY: And I'm working and I can afford to pay that fine and I can guarantee I will not be in a vehicle.

HIS WORSHIP: Yes. There is no prospect of you not getting a prison sentence. No prospect, because you were on a suspended sentence from the 12th of March 03 for a reckless driving charge, dangerous driving and driving under suspension. A month later you do it again. How do you possibly think you're going to escape a prison sentence? How did you think on the 14th of April when you were driving in that manner did you think that you weren't going to go to gaol by driving in that manner?

MS DONNACHY: Your Honour, I didn't think that at all. No. I was on my way to, basically, Jacob's Ladder and, you know, I took a wrong turn and I did the wrong thing. All I can say is that I'm sorry, but I am working. I'm prepared to do community work and I'm prepared to - - obviously my vehicle is for sale and my fines will be paid.

HIS WORSHIP: Well, we're also told you've got $3000 outstanding in fines anyway, so - -

MS DONNACHY: Those could be paid today, your Honour.

HIS WORSHIP: How can they be paid today? Have you got $3000 on you?

MALE SPEAKER: I have, your Honour.

HIS WORSHIP: Whereabouts?

(Page 15)

MALE SPEAKER: I'm her boyfriend. I'm also her employer.

HIS WORSHIP: Well, regrettably, Ms Donnachy, the matter has to be dealt with by way of a prison sentence. You just cannot treat the law with such utter contempt as you treat it and then expect not to go to gaol. You've had any number of offences where you've been given imprisonment - -

MS DONNACHY: No, your Honour. I don't - - I don't think I would survive a prison term. Can you - - is there any other thing we can look at?

HIS WORSHIP: - - that was suspended, I was going to say.

MS DONNACHY: Mm.

HIS WORSHIP: In 98 you got 6 months' imprisonment for driving under suspension. That was suspended.

MS DONNACHY: I also have a son, your Honour, and - -

HIS WORSHIP: Well, why aren't you behaving yourself so that you can stay home and look after your son?

MS DONNACHY: I am. Honestly. I am behaving myself. My car is up for sale. I'm working now. I love my son very much. I love my boyfriend very much. We're engaged - -

HIS WORSHIP: If you love your son very much why don't you start behaving yourself so that you can be a proper mother to him and not have him visit you in gaol?

MS DONNACHY: Well, I'm engaged - - I'm getting engaged to be married and - -

HIS WORSHIP: On the charge of driving under suspension on the 14th of April 2003, you will be sentenced to 9 month's (sic) imprisonment, and licence disqualified for 9 months cumulative.

On the dangerous driving charge, 9 months imprisonment, concurrent. Licence disqualified - -

It's for life, I think, isn't it, for a third one?

PROSECUTOR: Yes, sir.

(Page 16)

HIS WORSHIP: Licence disqualified for life.

On the charge of failing to stop, a fine of $200 with costs of 38.

We go back and deal with those offences from the 12.3.03, and on each of those that sentence will be triggered, so on them you will be sentenced to 6 months' imprisonment, concurrent with the 9 months.

Okay. You can stand down.

MS DONNACHY: Thank you, your Honour. "

48 I turn to the first ground of appeal.

49 In this case the statutory maximum penalties for the relevant offences were:

(a) Driving whilst disqualified - a fine of not less than $1,000 or more than $4,000 or imprisonment for not more than 18 months (subsequent offence) (s 49(3)(a)(ii) Road Traffic Act1974 (WA) ("RTA");

(b) Reckless or dangerous driving - a fine not exceeding $2,400 (48 penalty units ("PU")) or imprisonment for a period not exceeding 12 months and permanent disqualification from holding or obtaining a driver's licence (third offence) (s 60(1), s 60(3) RTA);

(c) Driving failing to stop when called upon - a fine not exceeding $600 (12 PU) (subsequent offence) (s 53(1) RTA).

50 As I apprehend it, this ground of appeal is in substance that the learned Magistrate erred in not adjourning the proceedings to enable the appellant to obtain legal advice and representation and that as a result of that error, there was a substantial miscarriage of justice because the appellant thereby lost the chance of receiving a different and less severe sentence.

51 The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage of justice (Dietrich v The Queen (1992) 177 CLR 292 per Brennan J at 325, Deane J at 335-6 and Dawson J at 343).

52 The question which must be asked is whether it was fair to proceed in the circumstances (Dietrich, supra).

(Page 17)

53 In Walkerv The Queen (1998) 101 A Crim R 152, the appellant had been convicted of two counts of sexual assault. He had terminated the services of his lawyer prior to trial and advised the trial Judge that he was unrepresented by choice. Serious problems became apparent in the course of the trial. The appellant told the trial Judge he was unaware that he was to stand trial that day, that he had just been released from hospital after relapse of a "mental breakdown" and had not been given a chance to bring his documentation. The Court of Criminal Appeal held the appellant had no real understanding of the trial process, did not expect to be required to give evidence, was unprepared to do so, wanted at least to consider legal representation and had been hospitalised for the preceding week. Under the circumstances it should have been recognised that it would be unfair for the trial to proceed. Although the trial Judge made enquiries of the appellant, they did not address the true issue, namely "was it fair to the accused in the circumstances for the trial to proceed".

54 Malcolm CJ pointed out (at 154) that as a result of the absence of any enquiry by the trial Judge regarding the reasons for the appellant being hospitalised the previous week, his history of mental illness, which went a long way to explain his incapacity, was not brought out at the trial. In those circumstances, there had been a substantial miscarriage of justice in that the appellant had been deprived of a fair trial.

55 As a general proposition the Dietrich principle does apply to summary proceedings in a Court of Petty Sessions (Weinel v Fedcheshen (1995) 65 SASR 156).

56 Although Dietrich and Walker both involved appeals against conviction, there is no reason why the principle requiring procedural fairness should not extend to the sentencing process.

57 A case not dissimilar to the present was Chinnery v Hansen (2001) 125 A Crim R 426, a decision of Hasluck J. There the appellant was sentenced to a term of immediate imprisonment in respect of an offence of driving whilst legally disentitled. She was unrepresented when he appeared before the learned Magistrate. When she was asked if she wanted legal representation, she declined although she was not told by the learned Magistrate that the prospect of a term of imprisonment was a possible outcome of the proceedings.

58 The appellant pleaded guilty.

59 Because the appellant was unrepresented there was detailed plea in mitigation presented on her behalf and apart from a brief oral pre-sentence

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report, there was comparatively little information provided as to her personal circumstances or any circumstances leading to the commission of the offence.

60 His Honour pointed out that had the learned Magistrate availed herself of the opportunity of being properly informed either by remanding the appellant so she could take legal advice or for the preparation of a written pre-sentence report (or both), she would in all probability have discovered that the appellant suffered from a major depressive disorder which was both chronic and severe and which, due to her resultant obsessionality and poor impulse control, materially contributed to her driving behaviour. He opined that her Worship may also have discovered that the appellant might require, as a result of her major depressive disorder, long-term psychiatric treatment and it would have become apparent that for the appellant, a term of immediate imprisonment would be particularly onerous because of her fragile psychological state.

61 Against that background his Honour allowed the appeal, quashed the sentence of 4 months imprisonment and substituted 4 months imprisonment suspended for 12 months.

62 Western Australia v Landers (2000) 22 WAR 278 was an appeal from a decision of Templeman J making an order absolute for a writ of certiorari to quash an order for committal of the respondent for sentence under s 101(1)(ii) of the Justices Act 1902 (WA). His Honour quashed the committal, holding that the failure of the Magistrate to inform the legally represented respondent that she was not required to plead to the charge was a failure to meet an essential requirement of the jurisdiction of the Magistrate to commit. The Full Court (Kennedy, Wheeler and Miller JJ) dismissed the appeal.

63 As to the procedure in Courts of Petty Sessions, Wheeler J observed (279):

"There are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.

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In Cooling v Steel (1971) 2 SASR 249 at 250, Wells J noted that:

'It is imperative … that courts of summary jurisdiction should follow practices that will avoid the possibility that a party … should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him.'

The guidelines for dealing with unrepresented defendants, which his Honour derived from that general expression of principle, have been followed in many jurisdictions, including Western Australia (eg, Jones v Holmwood [1974] WAR 33)."

64 Wood v Marsh [2003] WASCA 95 was an appeal from the refusal of a single Judge to grant the appellant leave to appeal from a decision of Justices sitting at the Court of Petty Sessions at Margaret River.

65 The appellant had been charged on two complaints with offences of wilfully damaging the windscreen of a motor vehicle and possessing a small quantity of cannabis, respectively. On the first he was fined $100 and an order for restitution in the sum of $500 was made. On the second he was fined $100.

66 The offences arose out of an incident outside a tavern in Margaret River in the early hours of the morning in May 2002.

67 When he was charged by the police he was told to appear at the Court of Petty Sessions and that there may be a duty lawyer from Legal Aid present. When he attended, he was handed a copy of the statement of material facts and told it would be read to the court. There was no duty lawyer in attendance. The appellant wanted to get the matter over and done with but said in his affidavit in support that he never appreciated the seriousness of the charge and what a conviction would mean. He was not aware that he could have the matter adjourned to obtain legal advice. When he was called before the court, one of the Justices asked his name and whether he wanted the matter dealt with. He said he did. The prosecutor then read out the material facts. The Justice asked him whether he wanted to say anything. The appellant told the court it was a "one off" incident and that he appreciated it was a stupid thing to do and that he was sorry. He did not mention events which had occurred in the

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hotel just beforehand which had led him to smash the windscreen in anger.

68 At no time did either of the Justices tell the appellant he could be remanded to obtain legal advice and nor was it indicated to him that he could apply for a spent conviction order. He was not given the opportunity to explain the reasons why he was so angry, which led to the commission of the offence, and he had not appreciated that he should bring along references to indicate that he was normally a person of good character - although such evidence was readily available as was apparent from the material which was before the Full Court.

69 Malcolm CJ (with whom Murray and Anderson JJ agreed) said (at [35]):

"The approach which the Court should take when an unrepresented person attends at Court and pleads guilty to an offence was considered by the Full Court of the Supreme Court of South Australia in Cooling v Steel (1971) 2 SASR 249 and 250 as follows:

' … the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.

If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct forfeiture of property or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath and that he may call witnesses or produce other relevant material for the consideration of the court.

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Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor, (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed (1970) SASR 374 and R v Maitland (1963) SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.

In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding'."

70 At [38] his Honour said:

"It is important that any Court and, in particular, a Court constituted by Justices of the Peace, ensure that a defendant who appears before them is apprised not only of his or her rights, but also of his or her duties. Decisions such as Cooling v Steel (supra) at 250 and 251 per Wells J; Salter v Seebohm (1972) 4 SASR 192 at 195 and 196; and Jones v Holmwood [1974] WAR 33 make the position clear. In the latter case, the appellant had sought a remand or adjournment to seek legal advice which was refused. This was held to be a denial of natural justice by Wallace J at 33. His Honour went on to say at 33 – 34:

' … it is timely that justices understood the principles upon which members of the community are entitled to be heard and entitled to have legal representation. It is altogether bound up with the subject of pleas in the lower courts, and that has been well settled but no better prepared than in the

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judgment of Wells J., of the Supreme Court of South Australia, which is referred to by Walters J., in the decision of Salter v Seebohm, which is cited in (1972), 4 S.A.S.R. 192, and I quote from p. 195'."

71 Malcolm CJ then referred to the passage from Western Australia v Landers which I have set out above.

72 His Honour observed that the responsibility of ascertaining whether a defendant is aware of their rights and duties rests with the court; it is not appropriate for the court to leave that to the prosecuting police officer. It is imprudent for a police officer to engage in a conversation with a defendant concerning his or her intended plea and in particular the consequences of it (Salter v Seebohm (1972) 4 SASR 192 at 195 and 196 per Walters J) because that may give rise to a suspicion that the defendant's plea of guilty is not given freely and voluntarily.

73 In the event, Malcolm CJ concluded that (at [42]):

"In the present case, there was no evidence put forward by the Crown that the Justices were satisfied, or took any steps to enable themselves to be satisfied, that the appellant understood his rights and was aware of the various matters referred to in Cooling v Steel (supra). It is clear that the appellant did not understand the nature and seriousness of the charges against him, in the sense that a conviction could lead him to have a criminal record; that he had a right to legal representation and a right to apply for an adjournment to obtain legal advice or representation; what sentence could be imposed; his entitlement to make submissions on penalty; his right to dispute the statement of material facts; or that he was entitled to make submissions about a spent conviction order having regard to s 6 and s 39 of the Sentencing Act, or obtain further evidence in support of a spent conviction order."

74 The evidence in this appeal shows there was material going particularly to the appellant's personal circumstances, especially her drug addiction, her mental condition and her efforts to rehabilitate herself with Mr Boon's support, which may have led the learned Magistrate to impose a sentence which was less severe than that he did in fact impose.

75 I say "may" because it cannot be said that his Worship would necessarily have done so, even with that material. The psychological report was from some four years previously and was not of any particular

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substance. The opinion that the appellant had a "psychiatric illness" was one which the author of the report was on the face of it not qualified to express. The reasons which I understand would have been given for the appellant driving whilst disqualified and in the manner she did are not likely to have been regarded as mitigatory.

76 Nonetheless, as the police prosecutor properly appreciated, given the serious nature of the charges, the fact that the appellant was pleading guilty to her eighth (or even seventh) driving under suspension, that she was in breach of a suspended sentence order and that imprisonment was a likely, if not inevitable, outcome, it was essential that the learned Magistrate ensured the appellant understood not only the gravity of her situation but her rights as explained in Cooling v Steel.

77 It is apparent the learned Magistrate took a very serious view of the gravity of the offences and the appellant's position, as well he could be expected to in the circumstances. But for that very reason, combined with the appellant's obvious lack of appreciation of those matters (at least to that point) it was incumbent on him to advise her of her rights and not to impose sentence unless satisfied she was fully aware of them but nonetheless wished to proceed.

78 It is not to be overlooked that Courts of Petty Sessions are summary courts which rightly administer summary justice; but peremptory disposition is not summary justice because it is not just. The requirements of procedural fairness to a defendant are simple and uncomplicated and not difficult to accommodate, but they are fundamental.

79 In this instance his Worship appears to have been led by his appreciation of the seriousness of the offences, of the appellant's position and the inevitability of imprisonment, to visit her with immediate punishment so as to impress those factors upon her. In so doing, without first satisfying himself she had a proper understanding of her procedural rights, or asking whether she wanted an adjournment for legal advice, his Worship fell into error, as a result of which there was a miscarriage of justice.

80 The second ground is really a different aspect of the first and does not add much more. It could not be an error of law for his Worship not to have heard from the appellant's fiancé in court, "in respect to (sic) sentencing options". Quite apart from the fact that it does not appear in the transcript that his Worship was asked to do so, Mr Boon had no right of appearance. The real point underlying this ground is that it goes to the

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proposition that there was (or could have been) available to the appellant material which could have been put before his Worship and which may have influenced the exercise of his sentencing discretion.

81 The first and third particulars of the third ground are also essentially repetitive because the learned Magistrate did not have any information concerning those matters before him and so was not able to take them into account.

82 The fact that the appellant had not spent actual time in prison before and the principle that imprisonment is a sentence of last resort, were considerations of which, in the circumstances of an eighth conviction of driving under suspension committed one month after the imposition of a suspended sentence of imprisonment for a similar offence, it could not be said his Worship was unaware. He had the appellant's record before him and it is clear he had regard to it. In the circumstances, it cannot properly be said his Worship gave insufficient consideration to those matters.

83 Having regard to my conclusions in respect of the first ground however, this appeal must be allowed.

Donnachy v Goy - SJA 1143 of 2003

84 In respect of this appeal the grounds of appeal are:

"(a) In respect to Complaint No. 44701/2003, escaping legal custody, the Sentencing Magistrate erred in sentencing the Applicant, in that, the Magistrate:-

(i) Placed too much emphasis on the deterrent and retributive aspects of the sentencing process and gave insufficient regard to the exceptional circumstances of the offence and the antecedents of the Applicant; and,

(ii) Failed to take into account Section 8(2) of the Sentence Administration Act 2003, which requires an escapee to serve the period at large, plus a penalty of one third of the time absent, thereby, the Applicant's sentence was automatically increased by 16 days, in any event; and,

(iii) Failed to obtain a Report from Nyandi Women's Prison, prior to sentencing the Applicant; and,

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(iv) Failed to take into account the fact that pursuant Section 85 of the Sentence Administration Act 2003, a sentence for this prescribed offence had the effect of negating all early release opportunities, pursuant to Section 22 of the said Act.

(b) In respect to Complaints numbered 6099-6101 of 2003, the Sentencing Magistrate erred in imposing concurrent terms of imprisonment, in that:-

(i) The sentencing Magistrate was swayed by the previous term of imprisonment imposed on 17 September 2003 and followed suit; and,

(ii) Failed to give sufficient or adequate consideration to the Applicant's antecedents; and,

(iii) Failed to give sufficient reasons for the sentences of imprisonment."

Ground (a)(iii) was abandoned at the hearing.

85 On 17 October 2003 the appellant pleaded guilty to escaping legal custody on 1 October 2003, together with one offence of speeding, one of driving whilst under suspension and one of wilfully misleading a police officer in the discharge of his duty under the RTA, on 3 January 2003.

86 The facts put to the learned Magistrate in respect of the charge of escaping legal custody were that following her conviction on 17 September, the appellant was serving that sentencing at Nyandi Women's Prison on 1 October when it was discovered she had left the prison. On 11 October she contacted the prison unit and subsequently surrendered herself to the Belmont Police Station.

87 The police prosecutor told her Worship that the appellant was at large for 10 days and counsel for the appellant seems to have been under the same impression. However, she was apparently at large for 12 days, taking that period from the date of her escape (1 October) to the date of her arrest (13 October 2003).

88 In relation to the traffic charges on 3 January 2003, the facts were that at approximately 7.30 am the appellant was detected driving her car at 72 kms an hour on Cockman Road, Greenwood in a 50 kms per hour speed zone. She was stopped by police and when asked to give her name,

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gave the name Christine Jamieson, which was that of her mother. Further inquiries by the police officers revealed that she was subject to a disqualification, her driver's licence having been disqualified for a demerit point suspension on 11 December 2002, that being current until 10 March 2003. She admitted she was well aware that she was under suspension.

89 Counsel for the appellant before the learned Magistrate, pointed out that the driving offences then being dealt with predated the imposition of the suspended sentence.

90 Counsel's submission was that had the subsequent driving matters "not intervened" the appellant may very well have received a suspended term of imprisonment in relation to the January offences. His further submission was that all the driving matters on the appellant's record "seemed" to him "… to be linked to her drug addiction". That was not put on the basis it was the drugs that made her drive but rather her need for drugs made her get behind the wheel of a car on many occasions to go and see her dealers. However, she was now in a relationship (this was presumably a reference to Mr Boon) and her partner had been trying to get her off drugs for quite some time.

91 Counsel finally submitted that the reality of the driving offences now meant that the appellant should probably receive a gaol term for them, but his submission was that it should be a concurrent term. He acknowledged that the offence of escaping legal custody was a different matter.

92 In relation to that, counsel described to the learned Magistrate the experience to which the appellant had been subjected at Nyandi. He acknowledged that the authorities indicate that an offence of escaping legal custody should ordinarily attract a cumulative term of imprisonment though he submitted that the term should be kept as short as possible, first because of the reasons for her escaping and the fact that she handed herself in and secondly with the amendments to the sentencing legislation the appellant would not have the benefit of remission or home detention.

93 Her Worship noted that the appellant had been the subject of three suspended terms of imprisonment of which she had successfully completed two but breached the third.

94 Her Worship then proceeded to sentence the appellant (AB 43-44):

"Stand up please, Ms Donnachy. I can see and I've heard that you've got a very long history, particularly of driving offences. You had three lots of suspended imprisonment sentences in the

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past and that third one you breached and that has resulted in you being sentenced to actual imprisonment for the first time. You escaped from Nyandi for 10 days, went back, handed yourself in and now we're dealing with that escape and also some further driving offences from back in January that occurred well before the last suspended imprisonment and - - and actual imprisonment. So I'll deal with those first.

Those driving offences from the 3rd of January, there is, of course, the mandatory further 9 months that you're disqualified from driving. That's added on to any other period that you can't drive. Since you now are back in custody and I gather your earliest release is sometime in January, it would have been the 21st but it will be later than that now … (indistinct) …

MS DONNACHY: Thirty-first, plus the 10 days.

HER WORSHIP: Yes, so it's the 31st, plus 10 days?

MS DONNACHY: Mm.

HER WORSHIP: All right. So for the driving under suspension in January and for the wilful mislead of the police officer in January, there's 2 months' imprisonment on each of those concurrent with your present sentence.

For the speeding, that has to be a fine of $100 and costs of 38, so it's $138. For that - - imprisonment is not available for that.

For the escape legal custody, I've heard the reasons why you escaped, and you then handed yourself back in, and that 10 days, of course, is still part of your sentence, but because of the escape this - - there has to be a sentence of imprisonment and it has to be cumulative on your present sentence. However, in the circumstances, given that you're in gaol for driving offences, given your personal circumstances, given the reasons for your escape and the fact that you handed yourself in, the period of imprisonment that's going to be added on to your present sentence is 6 weeks rather than what could have been 3 months. You can stand down thank you."

95 The maximum penalty for the speeding offence was a fine not exceeding $100. That for wilfully misleading a police office was a fine not exceeding $1,600 and the maximum penalty for escaping legal

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custody was a fine not exceeding $1,500 or imprisonment for not more than 18 months.

96 Mr Russell, for the respondent, quite properly conceded that her Worship was in error in imposing the sentence of 2 months imprisonment in respect of the offence of wilfully misleading the police officer, as imprisonment was not a sentencing option for that offence. However, the respondent's submission in that regard is that that did not result in a substantial miscarriage of justice because the sentence was ordered to be served concurrently with, and would be subsumed in, the other sentences the appellant was serving or would have to serve. I shall return to this below.

97 The first ground of appeal is against the sentence imposed for escaping legal custody.

98 I remind myself that it is not for an appellate court to substitute its own opinion for that of a sentencing Magistrate, merely because the appellate court would have exercised its discretion in a different manner (Lowndes v The Queen (1999) 195 CLR 665 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at 672). The appellant must demonstrate the sentence imposed was in error by reason of the learned Magistrate acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Magistrate said or the sentence itself may be so excessive or inadequate as to indicate there must have been an error even though it cannot be specifically identified (R v Grein [1989] WAR 178 per Malcolm CJ at 179-180).

99 I take it from her Worship's sentencing remarks that had it not been for the mitigating circumstances to which she referred, she would have imposed a sentence of 3 months rather than the 6 weeks imprisonment she did impose.

100 Escaping legal custody is a serious offence. General deterrence will invariably be a primary consideration in sentencing for it. The reasons for that were succinctly articulated by Franklyn J in Voisey v Taylor, unreported; SCt of WA; Library No 8273; 30 May 1990 at 6-8 where his Honour also pointed out that it is not a circumstance of mitigation that the escape was from an "open" institution, as was that of the appellant here:

"It has been held by authorities accepted and applied in this State that it is an offence which the courts must firmly put down

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as it strikes at the disciplinary procedures in prisons in that it leads or may lead to procedures being applied which engender resentment in the inmates and so works to their disadvantage. It also leads to the undermining of the prison system. R. v. Payne [1976] 2 N.S.W.L.R. 446 at p.447-8; Mennie and Millerv. R., Supreme Court of Western Australia (CCA); unreported; Library No.3063; 23rd October 1980; Hannah v. R.; Supreme Court of Western Australia (CCA); unreported; Library No.4571; 1st December 1982; Peterson v. Russell; Supreme Court of Western Australia (Kennedy J.); unreported; Library No.5607; 7th November 1984; Williams v. Hawker; Supreme Court of Western Australia (Rowland J.); unreported; Library No.5659; 13th December 1984; Hodson v. Clarke; Supreme Court of Western Australia; (Nicholson J.) unreported; Library No.7645; 16th March 1989. Some of such authorities deal with escapes from 'open' institutions and respondent's counsel seeks to distinguish this case on that basis. It is not necessary that the escape be from an open institution for the above principles to apply. The offence if it relates to an 'open' institution might be seen to be more serious than otherwise or to involve special considerations. Its consequence is that measures are required to be taken to prevent further escapes which measures may lead to a reduction in the 'openness' of the institution and to restrictions upon prisoners which would not otherwise be applied. It may further lead to the loss or change in nature of a type of custody considered beneficial to those there detained. Further the escape involves an abuse of trust and brings the prison system into disrepute. (See Williams (1982) 7 A.Crim.R. 46 Hope J.A. at p.47). It is clear on the authorities that the principles expressed in the above cases apply equally to institutions which are not within that category. That is so was made clear in R. v. Payne (supra) a judgment followed in this State on a number of occasions. What the authorities emphasise in relation to escapes from open or minimum security institutions is that there needs to be an even greater element of deterrence in such cases than the significant deterrent which must generally attach to escape from penal institutions generally.

The authorities are also clear that a sentence of imprisonment for this offence should generally be cumulative upon any other sentence imposed. I refer specifically to Hebb v. Gerarddi; Supreme Court of Western Australia (Burt CJ.); unreported;

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Library No. 2228; 12th December 1987. Of course the particular circumstances of a particular case may make such a sentence inappropriate and there is no principle or authority which takes away from the court its discretion to order a concurrent term in an appropriate case."

(and see also Rowland J in Jones v Williams, unreported; SCt of WA; Library No 920652; 7 December 1992).

101 In light of counsel's concession of the learned Magistrate that the authorities show escaping from legal custody should attract cumulative sentences and that his submission was that in what he described as the special circumstances of the case, the actual term should be "kept right down", it is difficult to see how her Worship could now be said to have erred in imposing a cumulative sentence and I did not understand that to be what Mr Sklarz was putting on the appeal.

102 There is nothing on the transcript which demonstrates that her Worship did unduly emphasise the deterrent and retributive aspects of the sentencing process, nor that she gave insufficient regard to the exceptional circumstances of the offence and the antecedents of the appellant. Her Worship expressly referred (albeit in the briefest possible way) to the personal circumstances of the appellant, the fact that she was already in gaol for driving offences, the reasons for her escape and the fact that she handed herself in after 10 days (sic). Given the approach which the authorities make it clear is to be taken to offences of this kind, it cannot properly be said her Worship erred in the way suggested. This particular has not been made out.

103 The next particular of this ground of appeal is that her Worship failed to take into account s 8(2) of the Sentence Administration Act 2003.

104 I have already noted that what was put to her Worship by the prosecution and counsel for the appellant, was that the appellant had been at large for 10 days, whereas in fact the period was 12 days. That appears from a letter dated 17 November 2003 from the Manager of the Sentence Information Unit of the Department of Justice, which is Annexure AB 2 to Mr Boon's affidavit of 22 December 2003. The letter also explains the effect of s 8(2) of the Sentence Administration Act:

"On 17 September 2003 Ms Donnachy was sentenced to a 9 month term of imprisonment providing for a maximum date of 16 June 2003 (sic). On 1 October 2003 Ms Donnachy escaped custody and was arrested again on 13 October 2003, a

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total of 12 days at large. Section 8(2) of the Sentence Administration Act 2003 provides that if a prisoner escapes they must serve the period at large plus a penalty of one-third of the time absent. Therefore Ms Donnachy's maximum date was increased by 16 days to 2 July 2004.

On 17 October 2003 Ms Donnachy was sentenced to 6 weeks cumulative imprisonment for the escape offence causing her maximum date to increase to 13 August 2004. Section 22 of the Sentence Administration Act 2003 permits release from a term of less than 12 months after half the period has been served, but only if no term being served is for a prescribed offence. Under section 85 of the Sentencing Act 1995 escape lawful custody is defined as a prescribed term and therefore Ms Donnachy is not eligible for release at half time and must complete her term of imprisonment in full."

105 It is unfortunate that neither the prosecutor nor counsel who then appeared for the appellant was able to correctly inform her Worship what the situation was in relation to the period the appellant would have to serve by virtue of s 8(2).

106 That much appears from the following exchange (AB 42-43), which commenced with the police prosecutor responding to a submission counsel had made to the effect that there could be no order that the appellant could be eligible for parole:

"In relation to eligibility issues, given that this is something that the sentence is cumulative upon - - I don't know, I haven't researched it, but I believe you would still be able to make this order, whilst cumulative, eligible for parole, given that it's on top of another sentence.

MR HARRIS: No, it's not possible. It's - -

HER WORSHIP: Is it because this is less than 12 months' sentence that she has served?

MR HARRIS: It's a less than 12-month sentence but the - - at the end of the day, the escape legal custody is something that parole can't be given for, it's a prescribed offence.

HER WORSHIP: Mm.

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PROSECUTOR: That being the case, your Worship.

HER WORSHIP: But the sentence she's serving is only 9 months or something, isn't it, or 6 months?

MR HARRIS: Nine months, but I think she would have been eligible for CEO parole after half that term.

HER WORSHIP: Yes, but that's gone.

MR HARRIS: Yes.

HER WORSHIP: So she is not eligible for any sort of remission or early release?

MR HARRIS: Not at the moment, no.

HER WORSHIP: And what happens with the 10 days that she was out? Is that just a straight 10 days added onto the sentence?

MR HARRIS: I think it gets added onto the sentence, yes.

HER WORSHIP: So she'll end up spending the full 9 months - -

MR HARRIS: Yeah.

HER WORSHIP:- - of that sentence.

MR HARRIS: That - - that's my understanding. I don't know whether the CEO of the prisons would still consider whether he could give parole, CEO parole, on the original term of 9 months.

HER WORSHIP: But that's not parole as in Parole Board parole?

MR HARRIS: No.

HER WORSHIP: So that's nothing - -

MR HARRIS: No. It's - -

HER WORSHIP: - - that I can have any input into?

MR HARRIS: No, not at all. It's the old home detention, basically." (My emphasis).

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107 It is clear enough that her Worship sentenced the appellant on the understanding that the time the appellant had been at large would be added to her sentence. She had that understanding because it was what counsel had told her. The reality was that the appellant would have to serve that period (which was in fact 12 days) plus 4 days.

108 Any time in custody, be it 4 days or 4 weeks or 4 months, is a most serious matter and if it were the case that one could say her Worship would have reduced the term she imposed by that amount had she been properly informed, that might well have constituted a miscarriage of justice. But I do not need to decide that because it is apparent that her Worship (quite correctly) arrived at the sentence of 6 weeks imprisonment in a global way rather than by the application of some arithmetical formula and that the fact that the appellant would have to serve an additional period as a result of her escape was one of the considerations to which she had regard. I would not uphold this ground on the basis of this particular.

109 The last particular in respect of the ground of appeal against the sentence for escaping for legal custody is that her Worship failed to take into account the fact that pursuant to s 85 of the Sentence Administration Act a sentence for this prescribed offence had the effect of negating all early release opportunities.

110 There is simply nothing in this. The exchange at AB 42-43 show her Worship specifically enquired whether the appellant was eligible for any sort of remission or early release and that counsel for the appellant told her she was not. There is no reason to think that her Worship proceeded on the basis of any different understanding.

111 I turn now to the ground directed to the sentences imposed in respect of the Road Traffic Act offences.

112 In the course of the appeal, I enquired of Mr Sklarz what he submitted the effect (if any) of this appeal would be were I to conclude the appeal against the sentence imposed on 17 September 2003 should be set aside. His first response was the only impact would be on the cumulative operation of the 6 week sentence for escaping legal custody. He added (t/s 20):

"The second appeal I unashamedly say is not strong in its merits as an appeal would go, and to stand alone has its own difficulties. That's why it is consolidated …"

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and then:

"At the end of the day the endeavour is that if the first sentence is one an appeal court would consider in some form inappropriate and/or alter, then my submission is that the second should follow suit for the 6 weeks 16 days."

113 In elaboration counsel pointed out that the appellant had already served the sentence for her traffic offences because they were ordered to be served concurrently.

114 So far as the sentence for the traffic offences are concerned, Mr Sklarz submitted that her Worship erred in imposing terms of imprisonment at all, in that "… she was swayed by the previous term of imprisonment imposed on 17 September and followed suit …" (t/s 23).

115 He conceded the fact that whether an offender is currently serving a term of imprisonment is a relevant consideration when sentencing, but submitted that in this case that "made [her Worship's] position far easier to have imposed those terms" although she was "extremely fair" in imposing terms as short as they were.

116 The gravamen of this ground of appeal is really that being aware the appellant was then serving a sentence of 9 months imprisonment (plus the statutory additional days for escaping) her Worship simply imposed further terms of imprisonment for the traffic offences without having regard to those principles and matters which ought to have been taken into account.

117 I will deal first with the sentence of 2 months imprisonment imposed for what was then the appellant's fifth driving under court ordered suspension.

118 Her Worship's sentencing remarks need to be read in the context of the submissions which had been made to her and the dialogue between her, counsel and the prosecutor. She was well aware of the appellant's long record of traffic convictions. She expressly noted she was dealing with traffic offences which had occurred in January and so pre-dated both the suspended sentence of imprisonment and the last conviction and sentence of immediate imprisonment.

119 There was nothing said by her Worship which indicated she was "following suit" - that is, imposing a term of imprisonment because the appellant was already serving a sentence of imprisonment. It ought not to be merely assumed that is what she did.

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120 The law has always regarded driving whilst under disqualification as a particularly serious offence, especially when committed in circumstances which suggest a wilful defiance of the law. Murray J made that point in Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994. I respectfully endorsed his Honour's remarks in that case in Griekspoor v Scott (2000) 23 WAR 530 at [72]. I also there canvassed a number of authorities concerning sentences for driving under suspension or whilst disqualified. I do not propose to set them out again here. They indicate that a sentence of 2 months imprisonment for a fifth driving under suspension is certainly within the range of a proper exercise of the sentencing discretion - and if anything, would be at the lower end. So far as the length of the term is concerned, Mr Sklarz effectively conceded that.

121 Although the possibility of a suspended sentence is always open, as McKechnie J observed in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 in a passage quoted in Griekspoor at [89]:

"In the case of persistent conduct there is more likelihood that the offender will have to demonstrate some special circumstances which would justify the suspension of a sentence of imprisonment."

122 A sentence of 4 months imprisonment for a fourth offence of driving under suspension was quashed by Miller J in Cross v Cook [2001] WASCA 242 and a suspended sentence of 4 months imprisonment was substituted. His Honour remarked (at [15]):

"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."

123 I note that what McKechnie J said in O'Brien v Ritchie was not that a suspended sentence may be imposed for a subsequent offence of driving under suspension only in exceptional circumstances, but rather that there is more likelihood the offender will have to demonstrate some special

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circumstances to justify suspension of a sentence of imprisonment. I do not understand Miller J's remarks to be indicating disagreement with that proposition.

124 In Zammit v Illich [2003] WASCA 88, McKechnie J observed (at [15]) that:

"The chances of any sentence other than an immediate term of imprisonment for a fifth offence of this type are slight."

I do not take that to be intended as a statement of principle; and I would respectfully agree with it as a practical observation.

125 This brief reference to authority is sufficient to show that the term of 2 months immediate imprisonment for the appellant's fifth offence of driving under suspension was well open to her Worship. Counsel who appeared for the appellant before the learned Magistrate acknowledged that she "should probably receive a gaol term for them." The appellant is in a difficult position seeking to argue otherwise now.

126 The submission that her Worship erred in that by imposing such a term she was merely "following suit" has not been made out.

127 As conceded by counsel for the respondent, the sentence of 2 months imprisonment in respect of the offence of misleading a police officer was not open to her Worship. Imprisonment was not a sentencing option for that offence. I am unable to accept the respondent's submission that the sentence did not result in a substantial miscarriage of justice because it was ordered to be served concurrently with other sentences. The imposition of a term of imprisonment which the law does not allow is itself a substantial miscarriage of justice. In addition, if not set aside, it would appear on the appellant's criminal record as a sentence lawfully imposed. That too, would be a substantial miscarriage of justice. That sentence must be quashed. As the appellant has already served that term it would be inappropriate to impose any further penalty.

128 The second ground of appeal must fail. The appellant was represented by counsel and the appellant's antecedents were before her Worship. When passing sentence for the offence of escaping legal custody, her Worship specifically mentioned that she had regard (inter alia) to the appellant's personal circumstances. In light of that, and the fact that the appellant's background and circumstances had only just been explained to her by counsel, it ought not to be assumed her Worship did not have regard to them.

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129 I turn now to the final ground of appeal, which is that her Worship erred in failing to give sufficient reasons for the sentence of imprisonment. This ground is pertinent now only to the sentence imposed in respect of the driving under suspension.

130 The obligation of the court to give reasons for decision is well established by the authorities. The principle is that a judicial officer has a duty to deliver reasons to expose his or her findings and process of reasoning sufficiently to enable a litigant to examine whether or not there is any ground of appeal and for an appeal court to adequately adjudicate any appeal if instituted (see Betts v Hardcastle (2001) 23 WAR 559 at 569-570 and the authorities there discussed). The principle extends to courts of summary jurisdiction and to the giving of reasons for sentence (Nevermann v The Queen (1989) 43 A Crim R 347; Furtak v Timmers [2001] WASCA 65 at [32]-[35]). As those authorities indicate, the extent to which reasons will need to be given will depend upon the particular case.

131 Her Worship's reasons here were brief in the extreme. In fact it is fair to say that her Worship gave no reasons for imposing the sentence of 2 months immediate imprisonment in respect of the driving under suspension, beyond observing that the appellant had a very long history of driving offences. Her comments that the appellant had "three lots of suspended imprisonment sentences in the past" and the third of which she had breached and resulted in her being sentenced to actual imprisonment, I take to be references to explaining the factual situation relating to the escape legal custody rather than as bearing on the sentencing discretion in respect of the traffic offences in January 2003, which her Worship noted occurred before both the suspended sentences and the sentence of actual imprisonment.

132 In my opinion her Worship did not give adequate reasons for imposing the 2 month term of imprisonment in respect of the driving under suspension offence in January 2003 and this ground must accordingly be resolved in favour of the appellant. However, s 199(1)(b) of the Justices Act 1902 (WA) provides relevantly that upon the hearing of an appeal, the court may dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred.

133 I am of the opinion that her Worship's reasons for the imposition of this sentence are sufficiently obvious (as they were obvious to counsel at the time), even though not articulated by her, and the sentence was

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properly within the range of a sound exercise of her sentencing discretion. In those circumstances, I would conclude that no substantial miscarriage of justice occurred from her Worship's failure to give adequate reasons.

Conclusion

134 In respect of SJA 1144 of 2003, I would:

(a) allow the appeal;

(b) quash the sentences imposed on 17 September 2003; and

(c) order that the complaints be remitted for re-sentencing before a different Magistrate.

135 In appeal SJA 1143 of 2003, I would:

(a) allow the appeal against the sentence of 2 months imprisonment imposed in respect of the offence of misleading a police officer;

(b) order that sentence to be quashed, but given the appellant has already served that term, I would impose no further penalty; and

(c) otherwise dismiss the appeal.