Erceg v Potthoff

[2001] WASCA 100

ERCEG -v- POTTHOFF [2001] WASCA 100

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 100
Case No:	SJA:1223/2000	Heard:	6 MARCH 2001
Coram:	McKECHNIE J	Delivered:	6/03/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Fine of $500 and suspension of motor driver's licence for 1 year substituted
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Parties:	IVAN PATRICK ERCEG PETER JOHN POTTHOFF
Catchwords:	Road traffic Driving under suspension Maximum fine and period of suspension Whether excessive Justices No reason for decision No new principles Case turns on own facts
Legislation:	Road Traffic Act 1974 (WA), s 49
Case References:	O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Chan v The Queen (1989) 38 A Crim R 337 Fernando v Keedy, unreported; SCt of WA (Murray J); Library No 940135; 4 March 1994 House v The King (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Marshall v Spent [2000] WASCA 114; (2000) A Crim R 572 R v Tait (1979) 46 FLR 386 Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ERCEG -v- POTTHOFF [2001] WASCA 100 CORAM : McKECHNIE J HEARD : 6 MARCH 2001 DELIVERED : 6 MARCH 2001 FILE NO/S : SJA 1223 of 2000 BETWEEN : IVAN PATRICK ERCEG

Appellant

AND

PETER JOHN POTTHOFF
Respondent

Catchwords:

Road traffic - Driving under suspension - Maximum fine and period of suspension - Whether excessive - Justices - No reason for decision - No new principles - Case turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed

Fine of $500 and suspension of motor driver's licence for 1 year substituted


(Page 2)

Representation:

Counsel:

Appellant : Mr C G Primerano
Respondent : Mr M A G Jenkin

Solicitors:

Appellant : Kitto & Kitto
Respondent : State Crown Solicitor

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

O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Chan v The Queen (1989) 38 A Crim R 337
Fernando v Keedy, unreported; SCt of WA (Murray J); Library No 940135; 4 March 1994
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447
Marshall v Spent [2000] WASCA 114; (2000) A Crim R 572
R v Tait (1979) 46 FLR 386
Veen v The Queen (No 2) (1988) 164 CLR 465

(Page 3)

1 McKECHNIE J: On 8 November 2000 the appellant was charged by summons with three offences. On 8 September 2000, he was riding a Harley Davidson motor cycle on the Brand Highway at a speed of 153 kms per hour. When stopped by police he produced a valid motor driver's licence which was not his. At the time he was not the holder of a motor driver's licence because he was under suspension for a period of three months.

2 He endorsed pleas of guilty and did not appear in the Court of Petty Sessions.

3 It is relevant to note that on 8 November 2000 the matter was called on before two Justices in the Court of Petty Sessions at Jurien Bay. He was fined as follows:

• Speeding $350

• Wilfully misleading a police officer $500

• Driving under suspension $2000

4 In addition he received a three year cumulative suspension of his driver's licence.

5 On 6 December 2000 he was granted leave to appeal on the following grounds:

"(a) The Justices of the Peace erred in imposing the maximum fine of $2,000.00 and three years cumulative suspension as a consequence of failing properly to consider:

i. The maximum sentence for the offence;

ii. Standards of sentencing and imposition of fines and suspension customarily observed or (sic) offences of this nature;

iii. The place in which the criminal conduct in question occupies on the scale of seriousness of crimes of this nature; and

iv. The applicant's antecedents."

6 The appellant is aged 30 and has a significant record in relation to speeding. He has had a series of motor driver's licence disqualifications. This is his first conviction for driving while under suspension.
(Page 4)

Ground 1

The maximum sentence for the offence

7 The maximum sentence for this offence is a period of imprisonment. By imposing a fine, the Justices have not imposed the maximum for what may be regarded as the worst case.

8 That said, the fine imposed is the maximum fine available. Because there are no reasons recorded of what motivated the Justices to impose such a fine it must be left to speculation.

9 The respondent argues that there is a strong presumption in favour of the correctness of the decision being appealed from.

10 Where a sentence is imposed by a Magistrate or a Judge and is supported by reasons, however brief, with the imposition of a penalty, there may well be a presumption.

11 Where, as here, the penalty is imposed by well-meaning but lay Justices, sitting at a remote location, and there are no reasons available, I do not consider an appellate court should approach the sentence with any presumption but should determine the appeal on ordinary principles.

Grounds 2 and 3

12 A series of appeals in this Court, particularly over the last few years, has highlighted the seriousness of any offence of driving while under suspension: see O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999.

13 The circumstances of this offence suggest a brazen defiance as evidenced by the production of the false motor vehicle driver's licence.

14 Having said that, however, it is important when sentencing for a series of offences arising out of the same incident to ensure that proper penalties are imposed for each act of criminal conduct and also that the accumulated penalty is proportionate to the totality of the criminal episode.

15 In the standards of sentencing customarily imposed for first offences of driving under suspension, and the place which this particular offence occupies on the scale of seriousness, I conclude that the decision of the Justices to impose both the maximum fine and the maximum period of

(Page 5)

suspension was an error and that the sentence should therefore be set aside.

Conclusion

16 The appeal is allowed. The fine of $2000 and suspension for 3 years are set aside.

17 In lieu the appellant is fined the sum of $500. He is disqualified from holding or obtaining a motor driver's licence for a period of 12 months from 8 November 2000.