Gould v Whalley

[2007] WASC 315

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GOULD -v- WHALLEY [2007] WASC 315

CORAM:   McKECHNIE J

HEARD:   26 NOVEMBER 2007

DELIVERED          :   26 NOVEMBER 2007

FILE NO/S:   SJA 1066 of 2007

BETWEEN:   LEE GOULD

Appellant

AND

CLINT NATHAN WHALLEY
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R B LAWRENCE

File No  :RO 5055 of 2007, RO 5056 of 2007, RO 5057 of 2007, RO 5058 of 2007

Catchwords:

Road traffic, driving under suspension - Unrepresented - Effect of plea of guilty - Whether taken into account

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr H C Quail

Respondent:     Mr A D Sullivan

Solicitors:

Appellant:     Hylton Quail

Respondent:     Director of Public Prosecutions (WA)

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

McDonald v White [2007] WASCA 213

Piccolo v The State of Western Australia [2007] WASC 149

1. McKECHNIE J:  On 11 July 2007 the applicant was sentenced to a total term of 2 years' imprisonment, without eligibility for parole, for a series of driving offences.  I directed that the application for leave to appeal and the appeal be heard together.  Having heard the application, leave to appeal is granted.  I will now refer to the applicant as the appellant.

2. The offences to which the appellant pleaded guilty and received a total term of 12 months' imprisonment were as follow:

Complaint Number	Description and date of Offence	Term Imposed
PE 5801/06	No MDL (Disq) - 11 Oct 05	12 months concurrent
RO 5055/07	Reckless Driving - 24 June 07	6 months concurrent
RO 5056/07	No MDL (Disq) - 24 June 07	12 months cumulative
RO 5057/07	DUI Alcohol - 24 June 2007	9 months concurrent
RO 5058/07	Obstruct Police Officer - 24 June 07	3 months concurrent

I will come to the cumulative nature of RO 5056/07 shortly.  He was also fined for one other offence.

1. The convictions triggered a suspended term of imprisonment of 12 months, which the magistrate activated, finding no reason not to do so.  Therefore, the total sentence was 12 months' imprisonment.  The activated suspended sentence of 2 years' imprisonment is not subject to an appeal.  I therefore confine my consideration to the sentence of 12 months' imprisonment with the concurrent sentences imposed directly by the magistrate on 11 July 2007.  The first sentence, however, has some relevance to the total effective period in custody.

2. It is not necessary to venture a description of the offences.  It is sufficient to quote the magistrate where he said:

   [O]n this occasion you repeat that behaviour and albeit that you might have only driven a short distance, you were well and truly intoxicated.  You tried to evade police by accelerating from them, losing control due to that intoxication and the speed, and by doing that, you endangered the lives of innocent road users throughout that journey and there is only one appropriate disposition and that is one of imprisonment.

3. The record of the appellant was described by the magistrate as horrendous and although he thought that the record was a little less than it appears, nothing really turns on it.  The offences were the appellant's 13^th and 14^th convictions for driving under suspension, the sixth driving under the influence of alcohol or refusing a breath test, and the fourth for reckless driving.  It was in respect of the 13^th driving under suspension conviction that he was sentenced to 12 months' imprisonment suspended for 2 years on 20 February 2006.  That was the offence which was activated by the re‑offending on 24 June 2007.

Ground 1

The learned magistrate erred in law in failing to make the appellant eligible for parole. 

1. The magistrate considered parole.  He said:

   Further, I must consider whether or not you should be made eligible for parole and the criteria to be utilised in determining that issue is contained within section 89 of the Sentencing Act and a parole eligibility order must not be made if the fixed term is less than 12 months. Obviously this is two years, so it must be considered; and the court may decide not to make a parole eligibility order in respect of a fixed term imposed for an offender if the court considers that the offender should not be eligible for parole because of at least two of the following four factors.

2. He then enumerated the factors contained in s 89(4) of the Sentencing Act 1995 (WA) as follows: (a) the offence is serious. The magistrate said, 'it is very serious'. I would interpose to say that I would, with respect, agree with the magistrate. 'Seriousness' in relation to s 89 may sometimes cause problems. In one sense all crimes are serious, but clearly some judgment has to be made about seriousness before it can be, as it were, a disabling matter in respect of parole. Here they are driving offences. The magistrate found that the lives of innocent people were endangered. I would classify the offences as serious in the circumstances.

3. The second matter the magistrate considered was the appellant had a significant criminal record. I have the record. Clearly item (b) of s 89(4) is present. The magistrate said, 'You have been released from custody - although that's not to be considered in this case.' Those comments, I believe, meant that the magistrate did not make an adverse finding in relation to the appellant under s 89(4)(c). When released from custody under the release order made previously the appellant did not comply with the order. The magistrate discounted that. Although it is a fact that the appellant has breached a CBO and an ISO in the past, the magistrate did not take that into account and neither will I. Then the magistrate continued, 'Any other reason the court considers relevant,' which is a reference to s 89(4)(d). He said:

   I think that I have outlined numerous reasons why in addition to (a) and (b), that you should not be made eligible for parole and that will be the order.

4. The appellant's claim is that, in effect, the magistrate did not exercise his discretion properly because once he considered that two of the matters in s 89(4) were activated, as a consequence parole should be refused. If that is what the magistrate did, that is probably an error. Section 89(4) has been discussed in numerous cases mentioned by the appellant in submissions and also more recently in Piccolo v The State of Western Australia [2007] WASC 149.

5. There is probably still some room for debate as to whether s 89(4) forecloses the discretion or whether there is still a discretion and a bias towards parole but that s 89(4) gives a court a discretion not to order parole. It is unnecessary for me to resolve those issues because in this case, although I consider that there is a two stage step, I believe that in the circumstances the magistrate was not in error in the way he approached the matter or the conclusion he came to.

6. It seems to me that the magistrate clearly understood he had a discretion and he said the court may decide not to make a parole eligibility order. Parole was put to him as a clear submission. I do not consider the magistrate fell into an error, if it be an error, in simply ticking the boxes of s 89(4). On the whole of the material, the magistrate nevertheless considered the question separately and declined to order parole in the exercise of a judicial discretion.

7. It was open for the magistrate to decline to order parole in the circumstances and, that being so, it was a question for the magistrate's discretion, not mine.  Absent error, either manifest or direct, I cannot simply substitute my view for the magistrate's.  For that reason ground 1 is dismissed.

Ground 2:

The learned magistrate erred in law in imposing a total sentence that was manifestly excessive having regard to:

a)the maximum penalty for driving under suspension

b)the pleas of guilty

c)the appellant's personal circumstances.

1. The maximum sentence under the Road Traffic Act 1974 (WA) for driving under suspension is a sentence of 18 months' imprisonment. Having regard to the transitional provisions of the Sentencing Act, the sentence the magistrate would have imposed prior to 2003 had to be reduced by one‑third.  Another way of looking at it is that the maximum sentence for driving under suspension is now 12 months' imprisonment.

2. Whichever way one looks at it, the magistrate imposed the maximum, yet there was a plea of guilty.  It is necessary only to quote McDonald v White [2007] WASCA 213 for the proposition that the plea of guilty is, in all cases, required to be taken into account. As I have expressed in the past, there is a statutory obligation under the Sentencing Act, s 8, to make reference to the plea of guilty and that failure to do so is of itself an error.

3. Counsel for the respondent concedes that the magistrate erred in this respect, but attempts to justify the sentence of 12 months that was ultimately imposed by reference to the totality of the offending.  Other sentences might not otherwise have been made cumulative.  That is a difficult submission to make because the magistrate took the view that each sentence had to be individual and exercised his discretion to make all the sentences concurrent with the driving under suspension.  That is an unsurprising result as they arose out of the one transaction.

4. I cannot be persuaded that the magistrate somehow would have imposed a greater sentence but for the pleas of guilty.  There is just no evidence that that was the magistrate's reasoning.  On the other hand, I am left with the reasoning of the magistrate in that he considered the most serious offence justified the maximum penalty.  The ground is made out in that the magistrate did fail to take into account the plea of guilty.  That is appellable error.  The magistrate said:

   I'm going to give you credit for the plea of guilty and I'm also going to take into consideration your personal circumstances, and to some extent you have attempted eradicate alcohol from your life, it would seem, for a short period with some success, but you have again relapsed due to personal circumstances which have been outlined and I'm certainly going to consider that factor.

5. The personal circumstances related to the particular emotional condition of the appellant on the day of offending and what caused him to relapse into drinking.  The magistrate also said:

   I'm also going to consider that you're going to obviously lose your employment and you are obviously going to lose your house which you have been purchasing as a result of your attempted rehabilitation - and the obtaining of your employment.

6. The magistrate said that he was going to take those matters into consideration.  He said also that he was going to give a one‑third discount, which he did.  But it is difficult to see within the sentence where he took those other matters into account.  This is so whether I have regard to the actual sentence of 12 months' imprisonment (the appellant's submission) or the total sentence for the criminal conduct (the respondent's submission).  I consider there is an error in also failing to bring them to account.

7. That said, they are nevertheless not to be given great weight.  They have to be balanced against what was a bad case of driving and against a lifetime's history as an adult flouting the law and refusing to accept the fact that the law has banned the appellant from driving again.  He is disqualified for life but simply continuously and contumeliously thumbs his nose at the law.  His personal circumstances and his attempts at rehabilitation, while they must be taken into account along with the plea of guilty, have to be weighed against those other factors in aggravation.

8. I will allow the appeal on ground 2, set aside the sentence in relation to driving under suspension complaint number RO 5056 of 07 and in lieu impose sentence a sentence of 8 months and 2 weeks' imprisonment; set aside the sentence on driving under the influence, complaint number RO 5057 of 07, and in lieu impose a sentence of 8 months' imprisonment.  The total new sentence is one of 12 months, plus 8 months and 2 weeks (which is 20 months and 2 weeks), without parole, to take effect from the date of the original sentence (11 July 2007).

9. The net result is the application for leave to appeal is granted, the appeal is allowed, the sentences as I have described have been set aside and sentences of 8 1/2 months and 8 months, respectively, substituted.