Gable v Nardini
[2010] WASC 321
•17 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GABLE -v- NARDINI [2010] WASC 321
CORAM: EM HEENAN J
HEARD: 11 OCTOBER 2010
DELIVERED : 17 NOVEMBER 2010
FILE NO/S: SJA 1090 of 2010
Consolidated by Orders dated 2 September 2010
MATTER :Criminal Appeals Act 2004 pt 2
BETWEEN: DAMON GENE GABLE
Appellant
AND
MICHAEL PETER NARDINI
Respondent
FILE NO/S :SJA 1089 of 2010
BETWEEN :DAMON GENE GABLE
Appellant
AND
MICHAEL PETER NARDINI
First RespondentMATTHEW McGREGOR CAMERON
Second Respondent
ON APPEAL FROM:
For File No : SJA 1090 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T J McINTYRE
File No :MH 5154 of 2009
For File No : SJA 1089 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T J McINTYRE
File No :MH 5154 of 2009, MH 3047 of 2010
Catchwords:
Application for leave to appeal - Appeals against sentence - Convictions for driving without authority - Third and fourth convictions - Initial sentence of imprisonment but suspended - Sentencing for breach of SIO and sentence of immediate imprisonment for later conviction - Alleged errors in sentencing - Failure to advise unrepresented respondents of risk of imprisonment and opportunity
Legislation:
Criminal Appeals Act 2004 (WA), s 6(f), s 7, s 27(2)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Sentencing Act 1995 (WA), s 6(4), s 34(1)(b), s 39, s 65, s 66, s 67, s 80, s 86
Result:
Leave to appeal granted
Appeals allowed
Appellant resentenced
Category: B
Representation:
SJA 1090 of 2010
Consolidated by Orders dated 2 September 2010
Counsel:
Appellant: Mr A J Robson
Respondent: Ms K A T Pedersen
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
SJA 1089 of 2010
Counsel:
Appellant: Mr A J Robson
First Respondent : Ms K A T Pedersen
Second Respondent : Ms K A T Pedersen
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abdullah v Mills [2008] WASC 128
Anderson v Heath [2005] WASC 253
Anderson v Little [2009] WASC 143
Anderson v Stilwell [2006] WASC 257
Arcari v Christie [2007] WASC 298
Austin v Grapes [2004] WASCA 102
Bacich v Illich [2000] WASCA 133
Bell v Wesley [2007] WASC 264
Brooks v Blackley [2009] WASC 274
Calway v Wiebe (Unreported, WASCA, Library No 990001, 13 January 1999)
Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11
Challis v Davison [2008] WASC 198
Chinnery v Hansen [2001] WASCA 349
Cooling v Steel (1971) 2 SASR 249
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donnachy v Riegert [2004] WASCA 48
Dragic v Burrows [2000] WASCA 385
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fennell v Somerville [2009] WASC 214
Findlay v The State of Western Australia [2007] WASC 61
Giowkos v The Queen (Unreported, WASCA, Library No 980224, 5 May 1998)
Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530
Humble v State Solicitors for Western Australia [2009] WASC 99
Kearney v Rinaudo [2007] WASC 104
Logan v Kuser [2008] WASC 65
Marshall v Spent [2000] WASCA 114
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASC 138
McShane v Greig [2009] WASC 310
Mears v Holleman [2010] WASC 39
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Moore v Hoddell [2009] WASC 380
O'Brien v Ritchie (Unreported, WASCA, Library No 990123, 17 March 1999)
Palmer v Dwyer [2010] WASC 28
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
Ramsay v Trovarello [2009] WASC 146
Rossiter v Francisty [2005] WASC 270
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Saylor v Shephard [2010] WASC 94
Scanlon v Bove [2008] WASC 213
Sheiner v Roberts [2009] WASC 281
Sheppard v Blakey [2001] WASCA 309
Smith v Hope [2001] WASCA 287
Spack v Godfrey [2009] WASC 262
Stewart v Waghorn [1999] WASCA 150
Tobin v Dodd [2004] WASCA 288
Warren v Van Den Berg [2004] WASCA 32
Williams v Franzinelli [2001] WASCA 241
Wood v Marsh [2003] WASCA 95
Zammit v Illich [2003] WASCA 88
EM HEENAN J: These are two separate applications for leave to appeal from sentences imposed upon the applicant in the Magistrates Court at Mandurah for two separate convictions for driving while under disqualification contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA). The two sentences now sought to be challenged were imposed by his Honour, Mr T J McIntyre SM on 7 August 2009 and on 21 July 2010 respectively. The details are:
First conviction
On 7 August 2009, the appellant pleaded guilty and was convicted in the Mandurah Magistrates Court for driving under disqualification on 4 August 2009 (PN/MH5154/2009). He was then sentenced to seven months' imprisonment, to be suspended for 18 months ('the first sentence').
Second conviction
On 21 July 2010, the appellant pleaded guilty and was convicted in the Mandurah Magistrates Court for driving under disqualification on 13 April 2010. The applicant's previous suspended sentence was activated and he was then sentenced to the seven months' imprisonment which had previously been suspended. For the second offence he was further sentenced to seven months' concurrent imprisonment ('the second sentence').
After the commencement of the appeals orders were made that they should be consolidated and heard together. By orders made on 2 September 2010 Murray J ordered:
1.The appellant be admitted to bail upon his own undertaking in the sum of $1,000 until such time as (a) leave to appeal is refused or (b) until the final hearing of the appeal on a date to be fixed of which the appellant will be notified by the court.
2.The appellant reside at (specified address) or at another address notified to counsel for the respondents prior to the change of address.
3.The appellant report to the police at the Mandurah police station each Monday and Wednesday at a time agreed with the officer in charge of the Mandurah police station.
4.The appellant is to surrender his passport within 24 hours of his release from prison to the Mandurah police station until the appeal is determined.
5.Service of the sentences imposed by the Mandurah Magistrates Court on 21 July 2010 is suspended pursuant to s 12 of the Criminal Appeals Act until the determination of the appeal.
It was also then ordered and directed that the applications for leave to appeal be heard at the same time as the appeals were listed for hearing and that, if leave were granted, the appeals should be determined at the same hearing. The applicant also made an application for an extension of time to appeal, which is relevant only to the proposed appeal against the first sentence, the suspended sentence.
As a result of the second sentence, the applicant has served 43 days of imprisonment from the time he was taken into custody until released on bail pending the hearing of these applications. That is a factor which needs to be taken into account.
Background
Originally, there were two separate appeals being, respectively, SJA 1089/2010 and SJA 1090/2010. Each was commenced by a separate appeal notice dated 24 August 2010 and filed in the registry on 25 August 2010.
The first appeal was from the decision of his Honour, Magistrate T J McIntyre SM in the Magistrates Court at Mandurah on 21 July 2010, by which his Honour sentenced the applicant for two offences of driving under suspension to which he had then pleaded guilty. The sentence imposed was 7 months' imprisonment and 9 months' disqualification of licence cumulative upon earlier disqualifications. The application was for leave to appeal against that sentence.
The second appeal (SJA 1090/2010) was from an earlier decision of his Honour, Magistrate T J McIntyre SM, also in the Magistrates Court at Mandurah but on 7 August 2009. On that day the applicant had pleaded guilty to driving under suspension and was sentenced by his Honour to 7 months' imprisonment, suspended for 18 months, and his Honour also ordered that the applicant's driver's licence be disqualified for 12 months cumulative upon earlier disqualifications. The application is for leave to appeal from this sentence.
Accordingly, to keep the proceedings in chronological order it is appropriate to treat appeal number SJA 1090 of 2010 as relating to the earlier conviction and the appeal in SJA 1089 of 2010 as relating to the later conviction and sentence.
By orders and directions made 2 September 2010 Murray J dealt with both applications and ordered, among other things, that:
(1)the time for commencing the appeals is extended to 25 August 2010;
(2)the appeals SJA 1089/2010 and SJA 1090/2010 be consolidated and heard together as SJA 1090/2010;
(3)the application for leave to appeal is to be heard at that same time as the appeal;
(4)the appellant has leave to file and serve amended grounds of appeal.
…(Other directions relating to the preparation of materials for the hearing.)
Following those orders and directions, the applicant filed amended grounds of appeal in the consolidated appeals dated 14 September 2010. It was these amended grounds upon which the applicant relied at this hearing. They are:
(1)on 7 August 2009 the learned sentencing magistrate erred in law by imposing a sentence of imprisonment which was suspended where imprisonment was not warranted and where a sentence of imprisonment and the length imposed was manifestly excessive in the context of the circumstances of the offence, the personal circumstances of the appellant and sentencing standards;
(2)on 7 August 2009 the learned sentencing magistrate erred in law by failing to adequately consider sentencing options other than imprisonment;
(3)on 21 July 2010 the learned sentencing magistrate erred in law by failing to advise the appellant, who was unrepresented, of the ability to obtain legal advice and representation and of the right to seek a reasonable adjournment to obtain that advice or representation;
(4)on 21 July 2010 the learned sentencing magistrate erred in law by failing to adequately consider whether it would be unjust to now require the appellant to serve the period of imprisonment that was previously suspended by failing to advise the appellant of the options outlined in ground 3 of the grounds of appeal;
(5)on 21 July 2010 the learned sentencing magistrate erred in law by imposing a sentence of imprisonment for the offending which was manifestly excessive in the context of the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.
The applicant has a bad record for driving offences involving convictions for offences before the first sentence which is the subject of these consolidated appeals. Dealing only with driving offences involving suspension and disqualification of the applicant's licence, his history is as follows:
•15 October 2008 - conviction in Perth Magistrates Court for driving with a blood alcohol level in excess of 0.08%, resulting in a fine and a three‑month period of disqualification.
•4 June 2009 - conviction for driving whilst under suspension. This offence was committed between January and June of 2009.
•4 August 2009 - appearance before Magistrates Court for driving whilst under suspension as a result of fines which were unpaid.
•7 August 2009 - conviction for driving under disqualification on 4 August 2009 and sentenced to 7 months' imprisonment, to be suspended for 18 months [the sentence which is the subject of the second appeal]. This offence was committed later on the same day that he had been subject to the fine suspension in the Magistrates Court, namely 4 August 2009 and was, therefore, his third conviction for driving while under suspension.
•21 July 2010 - conviction in the Mandurah Magistrates Court for driving under disqualification on 13 April 2010 resulting in the activation of the previous suspended sentence and the further sentence to 7 months' concurrent imprisonment [this is the sentence the subject of the first appeal].
I have earlier observed that the appellant served 43 days in custody prior to being released on bail. This was the period in custody following his conviction and sentence on 21 July 2010. He had, however, spent three days in custody prior to his conviction and suspended sentence of 7 August 2009 so resulting in an aggregate period of 46 days' imprisonment served as a result of those two offences.
Accordingly, the offence for which the applicant was sentenced on 7 August 2009 was his third offence of driving under suspension and it was this which resulted in the imposition of a sentence of 7 months' imprisonment, suspended for 18 months. The offence for which he was sentenced on 21 July 2010 was, accordingly, his fourth offence for driving whilst under suspension and this triggered the service of the full period of the earlier suspended term plus a further period of 7 months' immediate imprisonment, to be served concurrently.
The offence committed on 4 August 2009 leading to the conviction and sentence of 7 August 2009 (the first sentence) occurred when the applicant was driving home after appearing in court on 4 August. He was stopped by the police for a licence check, which revealed that he was driving whilst under suspension. The facts of this offence as presented to the court were that at 1.30 pm on 4 August 2009 the applicant was stopped in the carpark near Dick Smith Electrical for a licence check. It was found that he was then subject to a three months demerit point suspension issued on 29 May 2009 as well as the nine‑month cumulative court suspension issued by the Fremantle Court on 4 June 2009. The only explanation which he gave at the time was that 'I needed to get home'.
He had not, otherwise, committed any offence of speeding, driving whilst adversely affected by liquor or otherwise.
The subsequent offence committed on 13 April 2010 was again driving whilst under disqualification, resulting in the conviction and sentence of 21 July 2010. The facts on this occasion were that at 11.20 pm he was stopped by police for a licence check when driving a motor vehicle in Mary Street in Halls Head, Mandurah. It was discovered that he was driving whilst under suspension imposed by the Fremantle Magistrates Court on 4 June 2009 and he was thereupon arrested and his vehicle seized. His explanation was that he was driving home from work as a security officer at the Mandurah Quay Resort. Again, there is no allegation that he was speeding, driving recklessly or had committed any drink driving offence. It was the licence check which revealed that he was driving while under suspension.
It is necessary now to turn to the observations made by the learned magistrate when sentencing the applicant on both occasions.
On 7 August 2009, after taking the guilty plea, hearing the facts and hearing submissions by counsel for the applicant, his Honour observed:
Yes, but anyway I'm not going to go through the issues again, Mr Gable. You know the truth of what I was just saying. You were here in court I went through every aspect of it, you made a deliberate decision to drive knowing you were under suspension and knowing that on the previous occasion you'd been fined $400. So who do you claim you were going to be paying this child support to?
GABLE, MR: Megan Gable she's in Victoria.
HIS HONOUR: Supreme Court judges are not particularly good at dealing with issues of driving under suspension because they don't see it like magistrates do. But one Supreme Court judge, in trying to find a bad example of a case, said if someone was to leave the court and immediately get in their car that would be what she thought was one of the worst examples of its kind. Of course that may not necessarily be so but the point that was being made is that for you drive in the circumstances that you did last Tuesday 4 August showed that you were treating the law with absolute contempt and that's why you've been in custody.
Now perhaps, Mr Gable, you might actually take the issues seriously. Just by way of history you lost your licence on 15 October 2008 for a drink related driving offence. That offence occurred on 14 June of 2008. On 10 August 2008 you drove again with alcohol in your blood. That matter was dealt with two weeks after the first offence then on 12 November 2008 you drove under suspension so that was clearly only less than one month after you had lost your licence for drink driving. On Tuesday I had a comprehensive discussion with you about all of the issues associated with that period of disqualification.
You are now going to be sentenced to a period of imprisonment but I'm going to suspend it so that you know when you leave here that if you choose to drive again you'll put yourself back in the prison system for seven months. The minimum period of imprisonment that's allowed by law is six months and one day. So you're sentenced to seven months' imprisonment, it will be suspended for 18 months. So if within the next 18 months you commit any offence for which you could be sent to prison you will activate the suspended sentence.
Your record, Mr Gable, involves driving but it's not only driving offences that will result in the activation of the suspended sentence it's any form of offence for which you could be sent to prison. You now have 12 months cumulative disqualification which means it's added on to your current period of disqualification. So do you fully understand what your position is, Mr Gable?
GABLE, MR: Yes, sir. Over the last 10 years I've had no driving history and it's only because I've been going through a separation I apologise.
HIS HONOUR: Well, Mr Gable, all I am trying to do is to say to you, as I did the other day, that driving under suspension involves basically a contempt of the law. Now you're being given the opportunity and provided you don't break the law in the future you won't have to serve the sentence. If you do break the law in a serious way you will have to serve the sentence that I've just imposed. But having explained it in that way you will be released shortly as soon as you've signed the paperwork. All right then that's all.
On the occasion of the second sentence on 21 July 2010, the applicant was not legally represented. He had previously entered an endorsed plea of guilty but the learned magistrate had declined to deal with the matter in his absence and directed that he be present before the court and so it was that the applicant appeared in person that day. His Honour engaged in a series of questions or inquiries from the applicant before moving on to impose the sentence. Material passages of the transcript are as follows:
HIS HONOUR: Right, now your problem started with the commission of a drink driving offence in October 2008, or that's when the court dealt with it. Then in October 2008 again, on the 29th, another drink‑related driving offence. You drove under suspension, that was dealt with on 4 June 2009.
At a later point you drove contrary to a fine suspension and then the matter to which I referred, 7 August 2009, I dealt with you for driving under suspension in circumstances where, again correct me if I'm wrong, you drove away from the courthouse. Is that correct?
GABLE, MR: Yeah, it wasn't out of disrespect.
HIS HONOUR: No? I do have a copy of the transcript of 7 August when I spoke to you, of course, about the circumstances of that offending and the consequences of the breach of that. I've got no doubt that when I dealt with you on 18 May and fined you $500 I again reinforced the fact that if you were to drive again, or commit any offence that breached the suspended sentence, that you would have no further opportunities, Mr Gable, and you have to accept that, that was the case. Do you agree with what I am saying, that I warned you again about the consequences.
GABLE, MR: But I lost my licence, like, speeding and seatbelts and stuff.
HIS HONOUR: Yes, that may be so, but you've also been convicted twice of drink driving offences. But do you agree that on the occasion, 18 May, when you were last here, I did again warn you, about the consequences of breaching the suspended sentence?
GABLE, MR: Yes, I'm sorry. I don't want to be a deadbeat.
HIS HONOUR: No, I understand what your saying, but it appears to me that there's been no change in your circumstances, certainly since 18 May. So I'm afraid you've put - - -
GABLE, MR: I want to fix it.
HIS HONOUR: You what, sorry?
GABLE, MR: I want to fix it. I want to be able to drive again.
HIS HONOUR: Well, I'm afraid you can't overlook your history.
GABLE, MR: I know.
HIS HONOUR: You have had a short period of time in custody, that was 4 August, the day you drove away from the courthouse. You had three days in custody and then I dealt with you in the manner that I've described. So in view of the fact you've never spent any lengthy period of time in custody, you'll simply have to serve seven months' imprisonment for breaching the suspended sentence.
In relation to this matter, although there is another offence that has been committed, you don't have an extensive history of driving under suspension. If you learn nothing from seven months, well, you'll be back and you'll have to face the consequences.
In relation to the matter of 13 April - hang on, there's one important issue that I've overlooked, and that is of course that the offence that I'm dealing with now occurred on 13 April, that's prior to me dealing with you on 18 May. So some of what I've just said is inaccurate. The offence that I dealt with on 18 May was an offence of assault. So it was an offence of a different kind and I no doubt took that into account in fining you, instead of requiring you to serve the suspended sentence.
The offence that I'm now dealing with is exactly the same type of offence as that which was the subject of the suspended sentence. So having corrected the error I made, I'm still of the view, because it is an offence of the same kind, that you cannot avoid serving the suspended sentence. The suspended imprisonment order is breached. On the current offence, there is also a sentence of seven months' imprisonment, which is concurrent.
So, despite the fact you've committed a similar offence, I haven't increased the period of imprisonment because as I just said a moment ago, if you learn nothing from seven months, then you'll never learn anything. There is a period of nine months' imprisonment that's cumulative on any period of disqualification that you're currently undergoing.
So, Mr Gable, I can do nothing more than explain it in those terms. You breached the order, you're required to serve the sentence. Return to custody. Thanks, that's all.
It is also material to note that, as his Honour mentioned, the applicant had been before his Honour for other offences, including drink driving, speeding and assault, on earlier occasions, the offence of assault being dealt with after the imposition of the first suspended sentence. On those occasions, his Honour had fined the applicant rather than imposing any sentence of imprisonment and, in relation to the conviction for assault, did not consider that he should be required to serve all or any part of the suspended term, the conditions of which, however, had been breached by the commission of that offence, although it was of a different character. His Honour was certainly conscious of, and appears to have been influenced by, this history of other offences as showing that, in his Honour's view, the applicant did not display respect for the law.
By his applications for leave to appeal and by the amended grounds of appeal, the applicant seeks to challenge not only the immediate sentences of imprisonment imposed upon him on 21 July 2010 arising from his breach of the terms of the suspended imprisonment order of 7 August 2009 and the offence for which he was sentenced on 21 July 2010. He expressly seeks leave to appeal from the imposition of the 7 months' term of imprisonment which was suspended on 7 August 2009, although, of course, at that time he was not subjected to immediate custody. Nevertheless, he submits, that that was a sentence of imprisonment (notwithstanding that it was suspended) and that it was, in all the circumstances, excessive. His applications for leave to appeal are made pursuant to s 7 of the Criminal Appeals Act 2004 (WA) and, as his counsel submits, the right to seek leave to appeal from a decision includes a right to seek leave to appeal from the sentence imposed or an order made as a result of a conviction or acquittal (s 6(f) of the Criminal Appeals Act). Counsel for the applicant submitted, and it was not suggested otherwise, that a right to apply for leave to appeal from a suspended sentence can be pursued notwithstanding that the terms of the suspended sentence had been breached prior to appeal: Ramsay v Trovarello [2009] WASC 146 [56], [95] and Mears v Holleman [2010] WASC 39. In the latter case the court held that:
An important consequence of this conclusion is that the suspended period of imprisonment for 12 months, itself being regarded as excessive, means that it was also excessive for the appellant to be sentenced to that period of imprisonment on proof of breach of the terms of the suspended imprisonment order [22].
The only personal circumstances of the applicant which are submitted to be relevant are that in August 2009 he was 38 years of age; worked full‑time as a security guard for a security firm in Mandurah; was paying child support; was on medication (Tramadol) for an injury after an assault; and had an accompanying workers' compensation claim.
Leave to appeal
As the applications for leave to appeal are to be heard at the same time as the appeals, if leave is given, the approach taken must first be to consider whether any of the proposed grounds of appeal warrant the grant of leave to appeal. Section 27(2) of the Criminal Appeals Act provides that leave to appeal must not be granted unless a proposed ground has a reasonable prospect of succeeding. The significance and content of this requirement were examined by the Court of Appeal in Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 and I proceed to an examination of the proposed grounds and the test for leave in accordance with that decision. However, for the reasons which follow, I consider that each of the proposed grounds has arguable prospects of success and that leave to appeal in each of the consolidated appeals should be granted on all those grounds.
Counsel for the applicant has, in his written submissions, prepared a table showing sentences imposed in some 35 separate cases dating from 1999 to 2010 of appeals to this court or the Court of Appeal from sentences for driving a motor vehicle while under suspension sometimes with associated or related offences. This series of cases, listed below, cover periods both before and after 31 August 2003 being the date of enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and the Sentence Administration Act 2003 (WA) which required a sentencing court to impose a sentence which was two‑thirds of the sentence that it would have imposed had the previous sentencing regime been in operation at the time of the sentencing, and also before and after 14 May 2004 when the Sentencing Act 1995 (WA) was amended to provide that a court must not sentence an offender to a term of less than 6 months' imprisonment unless the aggregate of the term with another term would be more than 6 months, or if the offender is already serving another term, or the term is imposed under s 79 of the Prisons Act 1981 (WA).
In reliance upon that line of authority counsel for the applicant submitted that cases prior to the amendment to the Sentencing Act 1995, revealed that sentences of 6 months or less might be appropriate for offences of driving under disqualification for offenders committing a second or third offence. Counsel then submitted that following the amendment to the Sentencing Act 1995 with the general prohibition on the imposition of sentences for 6 months or less, the principle became that, if a court contemplated imposing a sentence of 6 months or less then some sentencing alternative other than imprisonment should be employed: Spack v Godfrey [2009] WASC 262 [21].
Next, counsel for the applicant submitted that a court must not impose a sentence of imprisonment on an offender unless it decided that (a) the seriousness of the offence is such that only imprisonment could be justified; or (b) the protection of the community requires it ‑ Sentencing Act s 6(4), and that this rule applies not merely to a sentence of imprisonment to be served immediately but to any sentence of imprisonment even if suspended. The submission is that any decision whether or not to suspend an offender's prison term involves a two‑stage process. First, having considered all the alternatives, the court must determine that a sentence of imprisonment is the most appropriate sentence. Only then may the court determine whether the sentence of imprisonment imposed should be suspended: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [79] (Kirby J) and, in this respect, attention must be paid to s 39 of the Sentencing Act which directs that a court must not use a sentencing option involving a more serious imposition on the offender unless the court is satisfied that it is not appropriate to use any less serious option listed in s 39(3). Counsel for the respondents did not challenge any of those propositions and I am satisfied that they are supported by the authorities relied upon.
Section 106(4)(a) of the Road Traffic Act1974 (WA) expressly accepts the potential for a person convicted of an offence of driving whilst under suspension of being sentenced to some form of community‑based order. That section provides that if a court sentencing a person who has been convicted for an offence against s 49, committed in the circumstances mentioned in s 49(3), imposes a community‑based order or an intensive supervision order under the Sentencing Act, the sentencing court must impose at least a community service requirement as a primary requirement of the order. The submission of the applicant in relation to both appeals is that the learned magistrate failed adequately, or at all, to consider sentencing options other than imprisonment such as a community‑based order or an ISO. Further, in support of that submission counsel points out that the learned magistrate did not order any pre‑sentence report.
The authorities relied upon for the general propositions just advanced by counsel for the applicant are:
•Mears v Holleman ‑ a conviction for a fifth offence of driving under suspension with accompanying convictions for speeding and breach of a suspended sentence ‑ a 12‑month total sentence reduced to 9 months on appeal;
•Palmer v Dwyer [2010] WASC 28 ‑ two convictions for driving under suspension and associated convictions for speeding, reckless driving and breach of a suspended sentence with a prior record of nine convictions for driving whilst under suspension and three prior convictions for reckless driving ‑ a 24‑month total sentence with eligibility for parole reduced to 13 months on appeal;
•Moore v Hoddell [2009] WASC 380 ‑ five offences for driving whilst under suspension, other associated offences with a prior record of eight offences for driving whilst under suspension ‑ a total period of 15 months' imprisonment with parole reduced to a 9‑month ISO on appeal;
•McShane v Greig [2009] WASC 310 ‑ convictions for two offences of driving under suspension and a breach of a suspended imprisonment order with a record of 10 prior offences for driving under suspension ‑ a sentence of 27 months with eligibility for parole reduced to 12 months' imprisonment with parole eligibility on appeal;
•Sheiner v Roberts [2009] WASC 281 ‑ five convictions for driving under suspension with a prior record of 10 offences for driving under suspension ‑ 18 months' imprisonment reduced on appeal to 8 months' imprisonment;
•Brooks v Blackley [2009] WASC 274 ‑ six convictions for driving under suspension and other associated offences with a prior record of one offence for driving under suspension ‑ 20 months' imprisonment with parole reduced to 12 months' imprisonment with parole on appeal, this case also involved a breach of a suspended imprisonment order for driving under suspension.
•Fennell v Somerville [2009] WASC 214 ‑ seven convictions for driving under suspension with other drink driving offences and other offences including assault and burglary with a prior record of one conviction for driving while under suspension and seven convictions for driving without a motor driver's licence but involving an offender with mental health issues ‑ an 18‑month aggregate sentence reduced to 12 months on appeal;
•Humble v State Solicitors for Western Australia [2009] WASC 99 ‑ a case involving one offence of driving whilst under suspension and other associated offences and a prior record of six offences of driving under suspension but with an offender with bi‑polar disorder but breaching the terms of an earlier community‑based order ‑ a total effective sentence of 12 months' imprisonment reduced on appeal to 8 months;
•Anderson v Little [2009] WASC 143 ‑ one conviction for driving under suspension and a conviction for driving under the influence with a prior record of three convictions for driving under suspension and three prior convictions for driving under the influence ‑ a 12‑month total effective sentence reduced on appeal to 8 months;
•Moody v French [2008] WASCA 67; (2008) 36 WAR 393 ‑ two convictions for driving under suspension, associated drink driving convictions with a prior record of nine offences for driving under suspension ‑ these offences were committed whilst the offender was on a suspended imprisonment order ‑ a total effective sentence of 21 months without parole was reduced on appeal to 12 months' imprisonment with parole.
•Abdullah v Mills [2008] WASC 128 ‑ three convictions for driving under suspension, three convictions for driving under the influence and other associated offences with a prior record of two convictions for driving under suspension and other offences ‑ a total effective sentence of 27 months reduced on appeal to 15 months;
•Challis v Davison [2008] WASC 198 ‑ convictions for four offences of driving under suspension and other offences with a prior record of nine offences for driving under suspension ‑ an effective total term of 12 months reduced on appeal to 8 months' imprisonment;
•Logan v Kuser [2008] WASC 65 ‑ one conviction for driving under suspension together with convictions for driving under the influence and speeding with a prior record of one conviction for driving under suspension and two convictions for driving under the influence ‑ effective total period of imprisonment of 14 months reduced on appeal to 7 months conditionally suspended for a total of 12 months;
•McDonald v White [2007] WASC 138 ‑ one conviction for driving under suspension with associated offences of reckless driving, failing to stop, driving in excess of 0.08 and damage to property with prior convictions for nine offences of driving under suspension and other serious offences ‑ a 15‑month total effective term of imprisonment reduced on appeal to 10 months' imprisonment.
•Bell v Wesley [2007] WASC 264 ‑ four convictions of driving under suspension and other associated offences with a prior record of 10 convictions for driving under suspension for an offender on a suspended sentence for an earlier DUS conviction ‑ a total effective period of 36 months' imprisonment and for all the offences upheld on appeal;
•Kearney v Rinaudo [2007] WASC 104 ‑ two convictions for driving under suspension with a prior record of six convictions for driving under suspension and associated drink driving offences ‑ a total effective period of 24 months' imprisonment reduced on appeal to 16 months with parole;
•Findlay v The State of Western Australia [2007] WASC 61 ‑ two convictions for driving under suspension and two convictions for driving under the influence with a prior record of 11 offences for driving under suspension and 11 prior drink driving offences ‑ an effective total term of imprisonment of 24 months without parole upheld on appeal;
•Anderson v Stilwell [2006] WASC 257 ‑ three convictions for driving under suspension with a prior record of 11 convictions for driving under suspension ‑ a total effective period of 24 months' imprisonment reduced on appeal to 20 months;
•Rossiter v Francisty [2005] WASC 270 ‑ three offences for driving under suspension and other associated driving offences with a prior record of seven offences for driving under suspension where the new convictions breached the terms of an earlier suspended sentence ‑ an effective total term of imprisonment of 14 months reduced on appeal to 8 months' imprisonment;
•Anderson v Heath [2005] WASC 253 ‑ three convictions for driving under suspension with associated other offences and a prior record of seven convictions for driving under suspension ‑ an effective total period of 16 months' imprisonment reduced on appeal to 7 months' imprisonment;
•Mason v Morrison [2004] WASCA 181 ‑ one conviction for driving under suspension and one conviction for driving under the influence with a prior record of nine convictions for driving under the influence and 11 convictions for driving without a motor driver's licence ‑ on a prosecution appeal a suspended term of imprisonment set aside and a total of 9 months' imprisonment imposed; and
•Austin v Grapes [2004] WASCA 102 ‑ two offences for driving under suspension with five associated offences for stealing and a prior record of seven convictions for driving under suspension ‑ a total effective term of imprisonment of 2 years reduced on appeal to 14 months with parole.
All the above sentences were imposed after the amendment to the Sentencing Act 1995 on 14 May 2004 to prohibit, generally, sentences for 6 months' imprisonment or less.
Comparable cases for sentencing for similar offences before the Act amendment of 1995 now follow. Those cited begin with:
•Zammit v Illich [2003] WASCA 88 ‑ one conviction for driving under suspension with a prior record of four convictions for driving under suspension and with the offence triggering an earlier suspended sentence ‑ resulted in a sentence of 3 months and 1 day for each conviction concurrent which was upheld on appeal;
•Chinnery v Hansen [2001] WASCA 349 ‑ one offence for driving under suspension with a prior record of five convictions for driving under suspension ‑ 4 months' suspended sentence;
•Sheppard v Blakey [2001] WASCA 309 ‑ two convictions for driving under suspension with two related drink driving offences and two offences for breach of bail with a prior record of two convictions for driving under suspension and four convictions for driving under the influence ‑ a total effective sentence of 21 months' imprisonment upheld on appeal;
•Smith v Hope [2001] WASCA 287 ‑ one conviction for driving under suspension with a prior record of two convictions for driving under suspension ‑ a sentence of 6 months' immediate imprisonment varied on appeal to a 6 months' suspended sentence;
•Cross v Cook [2001] WASCA 242 ‑ one conviction for driving under suspension and a related 0.08 conviction with a prior record of three offences for driving under suspension ‑ a sentence of 4 months' immediate imprisonment varied on appeal to 4 months' suspended sentence;
•Williams v Franzinelli [2001] WASCA 241 ‑ one conviction for driving under suspension and associated offence with a prior record of four convictions for driving under suspension and one conviction for driving under the influence ‑ a sentence of 9 months' immediate imprisonment varied on appeal to 6 months;
•Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 ‑ a conviction for one offence of driving under suspension and associated traffic offences with a prior record of three convictions for driving under suspension and two convictions for driving under the influence, the offences being committed whilst on parole ‑ a sentence of 6 months' imprisonment varied on appeal to a $4,000 fine rather than a suspended sentence which was not available because the offender was on parole.
•Dragic v Burrows [2000] WASCA 385 ‑ one conviction for driving under suspension and one conviction for possession of cannabis with a prior record of two convictions for driving under suspension and other criminal traffic convictions ‑ a sentence of 14 months' imprisonment varied on appeal to 4 months (allowing for time spent in custody);
•Bacich v Illich [2000] WASCA 133 ‑ two convictions for driving under suspension with a prior record of three convictions for driving under suspension ‑ a 5 months' head sentence and a concurrent sentence of 4 months upheld on appeal;
•Marshall v Spent [2000] WASCA 114 ‑ one conviction for driving under suspension and one conviction for driving under the influence with a prior record of one offence for driving under suspension and an offence for driving under the influence ‑ sentences of 4 months for each offence to be served concurrently upheld on appeal;
•Stewart v Waghorn [1999] WASCA 150 ‑ one offence for driving under suspension and one offence for driving under the influence and a prior record of four offences for driving under suspension and a previous offence for driving under the influence ‑ a 15‑month sentence of imprisonment varied on appeal to 6 months' imprisonment suspended;
•O'Brien v Ritchie (Unreported, WASCA, Library No 990123, 17 March 1999) ‑ one offence of driving under suspension with a prior record of three convictions for driving under suspension ‑ a sentence of 4 months' immediate imprisonment varied on appeal to 4 months suspended sentence taking into account that the offender had served 1 month prior to the hearing of the appeal; and
•Calway v Wiebe (Unreported, WASCA, Library No 990001, 13 January 1999) ‑ one conviction of driving under suspension and one conviction for driving in excess of 0.08 with a prior record of two offences for driving under suspension and two other drink driving offences ‑ a sentence of 4 months' imprisonment upheld on appeal.
This summary of the many cases relied upon by counsel for the applicant inevitably omits some significant details of each particular case, some of the personal circumstances of the offenders, and the interaction or combination of penalties imposed for other offences with which the offenders had been charged in circumstances where principles of totality meant that some moderation of the sentencing needed to be applied to avoid unjustified cumulation of periods of imprisonment.
Counsel for the respondents sounded a necessary note of caution by submitting that any comparative analysis of sentencing standards based on tables should be conducted with care because there is a risk of inadequately identifying the circumstances in which the offences were committed and the personal circumstances of the offender. Her submission was that it is inappropriate to approach the sentencing exercise as an arithmetical assessment based on the number of offences and that in every case the sentencing exercise must call for the exercise of discretionary judgment and whether or not the sentence imposed falls within the appropriate range would depend on the special circumstances of that case ‑ Bell v Wesley [37] ‑ [41].
Nevertheless, with this caution, the table of cases relied upon by counsel for the applicant does provide some general guidance. McKechnie J noted in Sheiner v Roberts [24] ‑ [25], that a sentence should not be longer than is necessary to achieve the purpose of sentencing, between general and personal deterrence, rehabilitation and punishment. For offences against s 49 of the Road Traffic Act, the penalties provided are designed both to be punitive and to secure public safety on the roads. Counsel for the respondents rightly submits that defiance of the law is a fundamental component of the commission of such an offence when driving under suspension, and that accordingly a predominant sentencing object is personal deterrence for the safety of the public: Donnachy v Riegert [2004] WASCA 48 [120] and Arcari v Christie [2007] WASC 298.
It is, of course the case, as his Honour Mr McIntyre significantly observed, that offences for driving a motor vehicle whilst under suspension are alarmingly prevalent. One consequence of this is that, in the interests of justice, sentencing patterns should be, as far as reasonably possible, consistent and in accordance with patterns of sentencing approved by this court emerging from multiple cases considered by many different judges. In Mears v Holleman, I had occasion to address this issue and examine a number of the more recent leading authorities leading to the observations:
Numerous recent cases have considered the sentencing patterns for multiple offences of driving whilst under suspension and where there is a history of previous similar convictions. In Sheiner v Roberts [2009] WASC 281 there is collected in the schedule a series of cases showing the penalties imposed for driving whilst under suspension over a period of 10 years. These issues were also considered in McDonald v White [2007] WASCA 213 and Moody v French [2008] WASCA 67, two recent decisions of the Court of Appeal. Other cases dealing with appeals from sentences imposed for offences of driving whilst under suspension include Rossiter v Francisty [2005] WASC 270; Anderson v Heath [2005] WASC 253; Gould v Whalley [2007] WASC 315; Anderson v Stillwell [2006] WASC 257; and in another decision of the Court of Appeal, Masonv Morrison [2004] WASCA 181.
I examined these and other decisions in the recent similar case of Palmer v Dwyer [2010] WASC 28. I am satisfied that these cases support, in a general way, the proposition that when sentencing for multiple offences of driving whilst under suspension a range of 4 to 9 months' imprisonment is conventional for the disposition for each individual sentence. That conclusion is supported further by the decisions in Humble v State Solicitor for Western Australia [2009] WASC 99; Abdullah v Mills [2008] WASC 128; Williams v Franzinelli [2001] WASCA 241; Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206; and Kearney v Rinaudo [2007] WASC 104. This last batch of cases shows that sentences for convictions for driving while under suspension involving fourth, fifth, sixth, seventh or eighth such offences resulted in terms of imprisonment, after appeal, being fixed at between 4 months and 9 months with eligibility for parole.
While every case is slightly different and there may be different circumstances of aggravation and mitigation, this pattern has now emerged as being remarkably stable in this State over the past 10 years, leading to my previous observation in Palmer v Dwyer (supra) [35] that sentences aggregating in effect somewhere near the region of 10 to 12 months are commonly imposed and seldom exceeded although there have been a small number of instances of longer periods of imprisonment [23] ‑ [25].
This does not mean that a sentence within these ranges must always be imposed or that there are not cases where longer or shorter periods of imprisonment or other forms of disposition may be justified. Nevertheless, recognition of this emerging pattern of the range of sentences for comparable offences should mean that particular features of an individual case which result in longer, shorter or different sentencing dispositions need to be identified and appropriately evaluated.
Features of the applicant's offences
The transcripts of proceedings now before the court show that the applicant was before his Honour, Magistrate McIntyre, in the Magistrates Court at Mandurah again on 18 May 2010 on a charge of assaulting a person, a child, on 9 February 2010. He pleaded guilty to this charge. The facts, as admitted, were that the applicant had been in an argument with the child's mother, his fiancée, and had been drinking and an argument resulted, leading to him pushing the child out of the way and knocking him over, causing a minor injury. This offence occurred during the period that the applicant was on the suspended sentence of imprisonment which had been imposed on 7 August 2009 and, therefore, it constituted a breach of the conditions of that suspended imprisonment order. The learned magistrate imposed a fine of $1,500 upon the applicant for the assault and ordered him to pay costs. In relation to the breach of the suspended term of imprisonment he imposed a fine of $500 and directed that the order should remain in force and, in doing so, said:
You are currently on a suspended sentence of imprisonment that was imposed because of driving‑related offences. You have got two alcohol‑related driving offences and you have driven contrary to fine suspension. It was the circumstances surrounding the offending behaviour that caused the suspended sentence to be imposed, rather than an extensive history of driving.
It is true that this offence is of a different nature and in the circumstances you are going to be fined for breaching the suspended sentence and it is going to remain in force, but with this distinct change, Mr Gable: any further offence of a kind that breaches the suspended sentence will result in you immediately serving that sentence. You can be absolutely positive of that. Is that understood?
It is a very frequent occurrence when persons are sentenced for offences which result in orders for a suspended sentence, community‑based orders or other non‑custodial orders which involve conditions that the offender should not, for a designated period, commit any further breaches of the law or offences of designated degrees of gravity, so that the offender will be warned at the time of sentencing that any future breach or repetition of the conduct may lead to the suspended sentence being activated and the offender being required to serve some or all of that period in prison or, in the case of breaches of the law while under other forms of non‑custodial supervision, that the breach may lead to a revocation of that order and an immediate period of imprisonment. Warnings of that kind are obligatory under s 34(1)(b) of the Sentencing Act. They are commonly given to emphasise the rigor of the obligations under which the offender is placed and the potential consequences should he or she offend again. In this way, they are part of the process of deterrence intended to operate on the individual offender and also to conduce to compliance with the law in the future.
The essential feature of these admonitions, however, must always be to warn the offender of the potential consequences of future offending and to make it known to him or to her the serious consequences which may follow if there is not compliance with the terms of the non‑custodial order. This is a necessary and desirable part of the sentencing process and it is to be expected that warnings of this kind will almost always be given to offenders in such circumstances.
However, it is one thing to warn an offender, even in strong terms, of what might happen in the case of future offences but it is another to state categorically that imprisonment will follow in the case of future offending. To state with certainty that imprisonment will follow in the case of future offending is to deny the possibility of any different disposition occurring in the future as might be warranted because of circumstances then unknown or unexpected. If an offender comes before a court because of a breach of the terms of a suspended imprisonment order it is, of course, likely that some or all of the original term of imprisonment may then have to be served. That is expressly provided by s 80 of the Sentencing Act but an order to serve part or all of the terms of imprisonment which were suspended is not inevitable and s 80(1)(d) contemplates that a fine or no order may be made in lieu, the court stating its reasons for doing so: s 80(4).
This recognises the principle that any sentencing exercise must be carried out having regard to the principles of sentencing contained in s 6, s 7 and s 8 of the Act and in the light of the circumstances of the particular offence or triggering event which has led to the occasion for the offender to be sentenced. It follows that it is an error of principle and an abrogation of the discretionary responsibilities of sentencing to forecast to an offender that, should he reoffend in the future, he will, regardless of the circumstances, be sent to prison even if the future reoffending involves a breach of the terms of the suspended imprisonment order or some other non‑custodial disposition.
Parliament has clearly stated that a sentence of imprisonment must not be imposed unless the court is satisfied of one or other of the factors referred to in s 6(4) are present and, by s 39(3), that a sentencing option contained in s 39(2) must not be used unless the court is satisfied that it is not appropriate to use any of the less serious sentencing options listed in that section. Of course, the imposition of a term of imprisonment under s 39(2)(h) is the last and most serious of the options available. Therefore, even in the case of an offender who has deservedly been given dire warnings of the consequences of future offending, but who comes before the court again because of subsequent offending involving a breach of a term of suspended imprisonment or other conditional disposition that offender must have the determination of the consequences of that offending preformed in a manner which fully respects and observes all the sentencing principles. That includes the need for an evaluation of the gravity of the particular offending and the appropriate discretionary disposition in the particular circumstances which have arisen.
No doubt, in such circumstances, a court may be more ready to resort to a term of imprisonment, and the circumstances may more readily be regarded as warranting only a term of immediate imprisonment, than might have been the case had the offender's history been different, but still the exercise must be undertaken on that occasion without pre‑determination by what might have been said when the offender was first sentenced for the non‑custodial disposition.
Put another way, the result of sentencing for breach of a suspended term of imprisonment under s 80 cannot be regarded as having been foreclosed by what might have been said by the judicial officer who imposed the suspended sentence of imprisonment or who may have dealt with the offender previously for some earlier breach of that order. What had been said to the offender by the judicial officer on such previous occasions will, no doubt, be relevant and material for consideration but it cannot and should not be regarded as being pre‑determinative.
Respect for precedent
In the passage from the learned magistrate's reasons for sentencing on 7 August 2009, which have been set out above, the learned magistrate observed, and I repeat, that:
Supreme Court judges are not particularly good at dealing with issues of driving under suspension because they don't see it like magistrates do.
It is not entirely clear what his Honour intended to mean by this surprising observation. If it were only to mean that experienced magistrates much more frequently come across cases of offences for driving while under suspension than judges on appeal there could be no objection to the implication that magistrates are more familiar with such cases than judges. If, however, the observation included a meaning that magistrates were better able to deal with such offences and that judges of this court were not well suited to deal with them then, regrettably, the observation would transcend a very important principle. No such impression or possible interpretation can be permitted to stand. The rule of law, including the doctrine of precedent, requires all courts to pay respect to and adhere to principles established by superior courts in the judicial hierarchy. Part of the responsibility of courts of appeal, whether of single judges, courts of intermediate appeal, or courts of final appeal, is to establish principles, ranges or guidelines which other courts are expected to follow unless there are cogent reasons to the contrary or some distinguishing feature which renders those principles inapplicable.
This need for judicial officers to follow the considered judgments of higher courts has often been stated in unmistakable terms. In Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 the need for courts to comply with seriously considered dicta of the majority of the High Court was emphasised by the entire court at [134] where it was emphasised that even an intermediate court of appeal should not take a step in disregard of long‑established authority and seriously considered dicta of the majority of the High Court and, in R v Keenan [2009] HCA 1; (2009) 236 CLR 397 Kirby J observed at [35] that, in recent years, the High Court has repeatedly reminded judges at trial and intermediate courts of their duty to conform to the rulings of the High Court in matters submitted to it for its decision and has instructed them to observe 'seriously considered dicta' uttered by a majority of the High Court.
These observations apply with equal force to magistrates at trial and when sentencing with regard to the principles established by decisions of the Court of Appeal and to decisions of single judges of this court dealing with the principles and pattern of sentencing for particular offences. The sentencing exercise is never at large as it must conform to established law and principle as expounded and defined by the courts.
In relation to sentencing generally, and even in relation to sentencing for particular offences such as driving whilst under suspension contrary to s 49 of the Road Traffic Act1974 (WA), there is ample jurisprudence in this State which must be respected and applied subject, always, to features of the particular case which might, if identified and explained, warrant occasional departures from it. It follows, therefore, that on 7 August 2009 the learned magistrate was not justified in approaching the task of sentencing on the basis that magistrates were in a better position to deal with such offences than judges whose decisions had considered and applied an established pattern of the law as it had emerged from a large number of other cases. Even to contemplate the adoption of any such approach would be a serious error of law.
Furthermore, in the circumstances of this particular case, it is evident that his Honour gave no attention to the possibility of other forms of sentencing disposition which did not involve imprisonment but proceeded on the approach that for subsequent offences of driving whilst under suspension an order for imprisonment was the only suitable disposition, and that for driving whilst under suspension and in breach of the terms of a suspended imprisonment sentence then immediate imprisonment was the only appropriate remedy. Unfortunately, such an approach is contrary to the authorities, contrary to the Sentencing Act and is an unjustified curtailment of the sentencing options which are always available.
Appearance without legal representation
When the applicant came before the learned magistrate in the Mandurah court on 21 July 2010 he had been arrested on 13 April 2010 and remanded on this charge, later entering a plea of guilty but, at the direction of the learned magistrate, was brought before the court in person on 21 July 2010. Unlike his appearance on 7 August 2009, he was not then legally represented.
At this hearing the learned magistrate inquired of the applicant:
•whether he maintained his plea of guilty;
•whether he wanted to say anything about his conduct;
•why he was driving under a suspended sentence;
•whether he was employed;
•whether there was any reason the suspended sentence should not be served; and
•whether the applicant had been told on 7 August 2009 that if he breached the suspended sentence he would be imprisoned.
(The applicant confirmed he had been so informed.)
Nevertheless, by his counsel, the applicant now submits that he should have been warned of the possibility that he might receive an immediate sentence of imprisonment and offered an opportunity to seek an adjournment to obtain legal advice or representation by counsel: Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11 per Wicks J at [18].
In Wood v Marsh [2003] WASCA 95 Malcolm CJ at [35] (with whom Murray and Anderson JJ agreed) cited with approval a statement made by Wells J in Cooling v Steel (1971) 2 SASR 249, 249 ‑ 250 about the correct approach which a court should take when an unrepresented person appears before it and pleads guilty to an offence. These observations were to the effect that the court should ensure that the person is appraised of their rights and specifically that he or she is told of: the ability to obtain legal advice and representation; the right to seek a reasonable adjournment to obtain that advice or representation; the seriousness of the charge and the penalties which may be imposed, especially where there is a risk of being sentenced to a term of imprisonment; the ability to dispute or comment upon the facts alleged by the prosecutor; and that the accused is aware that he or she may put before the court any matter in mitigation. This approach has been expressly adopted in this court in Saylor v Shephard [2010] WASC 94 [26] ‑ [27] per Mazza J.
These obligations were also recognised in Scanlon v Bove [2008] WASC 213; Warren v Van Den Berg [2004] WASCA 32; and Giowkos v The Queen (Unreported, WASCA, Library No 980224, 5 May 1998). Remarks to the same general effect about the need to ensure that a litigant in person is not unfairly prejudiced because of ignorance of the law or its procedures can be found in Tobin v Dodd[2004] WASCA 288, and in Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129. Obviously, much depends upon the particular circumstances and it is not the responsibility of the court to assume that the burden of identifying and presenting the case for the unrepresented litigant. Nevertheless, especially in the criminal jurisdiction, the court should be astute to ensure that an unrepresented litigant is not, because of inexperience, ignorance or lack of familiarity with the procedure, exposed to a liability or a consequence which could have been avoided or diminished had an opportunity been taken to address the critical issues or to take some other initiative which may have led to relevant factors receiving due attention.
In the present case it is unmistakably clear that the learned magistrate was considering the imposition of an immediate term of imprisonment upon the applicant, but his Honour did not follow this procedure, did not warn the applicant that he was in jeopardy of being sentenced immediately to a term of imprisonment and did not in any way refer to the possibility that the applicant might need to seek or obtain legal advice or representation. He was asked if there was anything which he wanted to say but, in the dialogue which followed, which principally involved questions by the magistrate, there was no intimation that evidence could be called or that the applicant had the right to dispute any of the features of the case which had been put up by the prosecution. Nor was the fact that the circumstances leading to the applicant's arrest had not involved any other traffic offence, accident or dangerous feature expressly mentioned or recognised.
In a number of cases where appeals have been undertaken by persons who initially were unrepresented, but who then submitted that their lack of representation exposed them to some disadvantageous consequence which could have been avoided had their attention been drawn to the impending peril, the response of the appeal court has been that nothing which might have been said or advanced on behalf of the unrepresented person would have led to any different outcome. That is not an answer to a failure to ensure that the litigant is aware of the risks which he or she may be facing and of the opportunities of obtaining legal representation or an adjournment but, rather, amounts to a conclusion that there has been no miscarriage of justice notwithstanding the course of events followed.
So in the present case counsel for the respondents has submitted that no substantial miscarriage of justice has arisen because the applicant was not alerted to the possibility of immediate imprisonment or given an opportunity to seek legal advice or an adjournment when before the court on 21 July 2010. However, I do not think that that submission should be accepted because it proceeds on the assumption that the sentences imposed on 21 July were, in any circumstances, inevitable. That is plainly not the case and, had the applicant had an opportunity to obtain an adjournment and obtain legal advice, there is every possibility that he may have been advised to seek leave to appeal against the decision of 7 August 2009, which he is now doing, and to put before the court submissions to the effect that even if the later offence had involved a breach of a term of suspended imprisonment it did not automatically follow, as his Honour treated it as following, that an immediate term of imprisonment was inevitable on 21 July 2010.
It follows that I am satisfied that the failure to alert the unrepresented applicant on 21 July 2010 that he faced a real prospect of immediate imprisonment and to explain that, if he wished, he could have an opportunity to obtain an adjournment and/or seek legal advice, constituted a significant procedural error and one amounting to an error of law.
Circumstances of offending
It is clear that the learned magistrate considered that the applicant had, by his conduct, shown scant respect for the law, bordering on, if not constituting, an absolute disregard for previous orders of the courts. The applicant had a record which included two previous offences for drink driving, he had lost his licence previously because of suspensions arising from the non‑payment of fines and/or demerit points, and his driver's licence had been suspended as a result of the conviction of 4 June 2009, then because of a suspension arising from non‑paid fines on 4 August 2009, then he was sentenced to the suspended term of 7 months' imprisonment on 7 August 2009 for his second offence of driving whilst suspended, and then he was sentenced again on 21 July 2010 for his third offence of driving whilst under suspension and his suspended sentence was fully activated. I am satisfied, therefore, that the learned magistrate had cause to regard the applicant as a person who had shown serious disregard for the law, and had a history of driving offences which provided further illustration of that tendency. Nevertheless, on neither of the two occasions when his Honour sentenced the applicant to imprisonment for driving whilst under suspension did his driving involve any immediate threat or danger to the public or other road users. It was his disobedience of the law which was the serious feature of his conduct and which gave rise to the need for a further, and perhaps stronger, sanction.
Having regard to all the circumstances, and in particular to the prevailing pattern of sentencing for comparable offences which emerges from the authorities which I have examined, I consider that the sentence of 7 months' imprisonment, suspended, imposed on 7 August 2009 was excessive. The pattern of sentencing for second offences of driving whilst under suspension, which did not involve significant accompanying offences or driving of a kind then immediately dangerous to the public or another road user, would in the past characteristically, if warranting a sentence of imprisonment, have attracted a penalty of something in the vicinity of four to five months. The length of the period of imprisonment is not affected by the decision which follows to suspend that term.
In view of the 1995 amendments to the legislation prohibiting a sentence of less than 6 months' imprisonment, I do not consider that the correct response in these circumstances is to sentence an offender for longer than 6 months' imprisonment. Rather, the response should be to consider some different form of disposition. This is also consistent with the principle that, when imposing sanctions for subsequent offences or other forms of reoffending, generally speaking, the approach of a court should be to increase the severity of the penalty in a progressive way without immediately resorting to the most serious sanction available.
As I have reached the conclusion that the sentence of 7 months' imprisonment imposed in August 2009, notwithstanding that it was suspended, was excessive in being beyond the acceptable range of sentences for such an offence having regard to the circumstances and antecedents of this offender, that constitutes an error of law and it is necessary that I should resentence the applicant upon that conviction. It does not appear to me that a conditional release order under pt 7 of the Sentencing Act would have been a suitable disposition because, by his prior conduct, the appellant had demonstrated that there was a risk that he would reoffend in the future, a risk which materialised in the conviction on 21 July 2010, although to take that into account would be to act with hindsight. However, I consider that a community based order as provided for by pt 9 of the Sentencing Act would suit the applicant's circumstances as they were in August 2009.
The indications are that the applicant has been careless and neglectful of his obligations to comply with the law and needs reinforcement of that obligation. This would be achieved by requiring him to undergo a supervision requirement under s 65 of the Sentencing Act and to follow the directions and requirements of a Community Corrections officer. I also consider that he should be subject to programme requirement under s 66 of attending such assessments as a Community Corrections Officer may consider necessary or appropriate and, in particular, of attending educational, vocational or personal development programmes or courses. Further, in view of his previous offending and because of the requirements of Road Traffic Act, he should complete a community service requirement under s 67 of the Sentencing Act, which I would set at 40 hours of community service under s 67(3) of the Sentencing Act. The term of the community based order should be a period of 20 months from the date of 7 August 2009. In practical effect, this means that as from the date of this resentencing the applicant will have a little less than six months to serve out the community based order and to complete his community service requirements under it.
I now turn to a consideration of the sentence imposed by the learned magistrate for the second offence at the hearing of 21 July 2010. I am satisfied that the learned magistrate erred by proceeding immediately to impose a term of 7 months immediate imprisonment on this occasion. There was the procedural error in failing to alert the unrepresented applicant to the possibility of seeking an adjournment and/or obtaining legal advice or representation, and there was the error of proceeding on the footing that an immediate term of imprisonment was inevitable for this third offence. That error was also caused, to some extent, by the treatment of the suspended term of imprisonment of 7 months imposed on 7 August 2009 as being the lawful sentence. Clearly, his Honour had no alternative but to proceed on that footing because, at that point, that sentence had not been challenged or corrected. However, that does not mean that it was not a contributing factor to the result then imposed. As I have already observed, his Honour was correct to perceive the applicant as being a person at risk of reoffending and as a person showing insufficient respect for the law and earlier orders of the court. Nevertheless, I do not consider that an immediate term of 7 months' imprisonment was justified for the applicant's third offence in these particular circumstances because that penalty is outside the range of sentences established by the pattern of cases which have previously been analysed.
However, the fourth offence does call for a sentence of imprisonment and I consider that 7 months is in accordance with the pattern of sentencing which I have examined. In the circumstances of this case and on the principle that, generally speaking, a court should not resort to the most extreme punishment without considering other lesser dispositions, this is an occasion in which that sentence of imprisonment should be suspended. It is to be noted that the applicant pleaded guilty to the charge at the earliest opportunity and also has spent 43 days in custody following the order imposed by the learned magistrate. Taking those 43 days into account, a 7‑month period of imprisonment, in practical terms, reflects a total term of imprisonment of approximately 10 months or a little less, which is getting towards the higher end of the scale of sentences imposed as established by the authorities examined. Accordingly, in resentencing the applicant for the offence dealt with by the court on 21 July 2010, I consider that he should be sentenced to a period of 7 months imprisonment, to be wholly suspended for a period of 12 months. The period of suspension of that sentence will be treated as beginning as at 21 July 2010.
Summary
For these reasons, I consider that the applicant should be granted leave to appeal in both appeals and on all the grounds contained in the amended notice of appeal. The appeal in 1090 of 2010, that is from the sentence imposed on 7 August 2009, should be allowed; the sentence of 7 months' imprisonment suspended for a period of 18 months imposed by the Magistrates Court at Mandurah on that date should be set aside; in lieu thereof the applicant should be placed on a community based order for a period of 20 months, beginning from that date; the community based order should contain a supervision requirement under s 65 of the Sentencing Act, a programme requirement under s 66 and a community service requirement under s 67, which I have set at 40 hours of community service.
In relation to appeal number 1089 of 2010, that is from the sentences imposed by the Magistrates Court at Mandurah on 21 July 2010, the appeal should be allowed and the sentence of 7 months' imprisonment to be served immediately for the offence committed on 13 April 2010 should be set aside. Furthermore, the sentence of 7 months immediate imprisonment to be served concurrently because of the breach of the terms of the order of suspended imprisonment on 7 August 2009 should also be set aside. In lieu thereof, the applicant is sentenced to a period of 7 months' imprisonment for the offence committed on 13 April 2010 but that sentence is suspended for a period of 12 months, commencing on and from 21 July 2010.
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