Graham v Urban
[2013] WASC 273
•25 JULY 2013
GRAHAM -v- URBAN [2013] WASC 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 273 | |
| Case No: | SJA:1078/2013 | 19 JULY 2013 | |
| Coram: | ALLANSON J | 25/07/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | SJA 1078 of 2013 Leave to appeal granted on both grounds Appeal allowed on ground 2 Appeal dismissed on ground 1 SJA 1079 of 2013 Leave to appeal granted on all grounds Appeal dismissed on ground 1 Appeal allowed on grounds 2 and 3 | ||
| B | |||
| PDF Version |
| Parties: | PATRICIA MAREE GRAHAM BARRY URBAN MOHAMED BIN MUSTAFA |
Catchwords: | Criminal Law and procedure Road traffic offences Appeal against sentences Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 49, s 64, s 64AAA Sentence Administration Act 2003 (WA), s 23 Sentencing Act 1995 (WA), s 80, s 87 |
Case References: | Brown v The State of Western Australia [2009] WASCA 74 Brown v The State of Western Australia [2011] WASCA 111 Gable v Nardini [2010] WASC 321 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Mears v Holleman [2010] WASC 39 Narkle v Hamilton [2008] WASCA 31 Sheiner v Roberts [2009] WASC 281 Trew v The State of Western Australia [2004] WASCA 155 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
BARRY URBAN
Respondent
- Appellant
AND
MOHAMED BIN MUSTAFA
Respondent
(Page 2)
ON APPEAL FROM:
For File No : SJA 1078 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : AR 1422 of 2011, AR 1423 of 2011
For File No : SJA 1079 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : MH 116 of 2013
Catchwords:
Criminal Law and procedure - Road traffic offences - Appeal against sentences - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 49, s 64, s 64AAA
Sentence Administration Act 2003 (WA), s 23
Sentencing Act 1995 (WA), s 80, s 87
Result:
SJA 1078 of 2013
Leave to appeal granted on both grounds
Appeal allowed on ground 2
Appeal dismissed on ground 1
SJA 1079 of 2013
Leave to appeal granted on all grounds
Appeal dismissed on ground 1
Appeal allowed on grounds 2 and 3
(Page 3)
Category: B
Representation:
SJA 1078 of 2013
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr J F Bennett
Solicitors:
Appellant : PA Brindal & Co
Respondent : State Solicitor for Western Australia
SJA 1079 of 2013
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr J F Bennett
Solicitors:
Appellant : PA Brindal & Co
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brown v The State of Western Australia [2009] WASCA 74
Brown v The State of Western Australia [2011] WASCA 111
Gable v Nardini [2010] WASC 321
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mears v Holleman [2010] WASC 39
Narkle v Hamilton [2008] WASCA 31
Sheiner v Roberts [2009] WASC 281
Trew v The State of Western Australia [2004] WASCA 155
(Page 4)
1 ALLANSON J: On 11 February 2011, Patricia Maree Graham was sentenced in the Armadale Magistrates Court to a term of 10 months' imprisonment, suspended for 2 years, on a charge of driving while not authorised to do so: Road Traffic Act 1974 (WA), s 49. It was her sixth conviction for that offence. She was also sentenced to 3 months' imprisonment concurrent, also suspended, for an offence against s 64 of the Road Traffic Act. She did not appeal either sentence.
2 Ms Graham did not complete the period of suspension without offending again. On 22 December 2012, she was stopped while driving a car without a licence. On 9 April 2013, Ms Graham pleaded guilty and was convicted of driving while not authorised to do so: Road Traffic Act s 49(1)(a) and (3)(b). Ms Graham was also convicted of an offence against s 64AAA of the Act, committed on the same occasion, and fined. She does not complain about the fine imposed. It is relevant only in that her driving on 22 December 2012 was in circumstances in which she committed another, although less serious, offence.
3 This appeal is against the sentences imposed on 9 April 2013. Because the offence of driving while unlicensed in December 2012 was committed within the period of two years from her previous suspended sentence, Ms Graham was liable to be resentenced under s 80 of the Sentencing Act 1995 (WA) for the earlier offences. Unless the court had decided it would be unjust to do so, it was obliged by s 80(1)(a) and (3) to order Ms Graham to serve the term of imprisonment that had been suspended.
4 The magistrate imposed the following terms of imprisonment to be served immediately:
1. 7 months of the 10 month suspended sentence imposed for unlicensed driving by the Magistrates Court at Armadale;
2. the 3 month term imposed for the offence against s 64 of the Road Traffic Act, to be served concurrently;
3. 3 months for the current offence against s 49, to be served cumulatively.
5 The result is a term of imprisonment of 10 months. Ms Graham had, at that time, been in custody since 28 March 2013 (12 days). The magistrate referred to that fact, but made no order regarding the date from which the sentences were to run.
(Page 5)
6 By reason of s 89(2), a parole eligibility order could not be made, the sentence being less than 12 months. Ms Graham must be released on parole under s 23 of the Sentence Administration Act 2003 (WA) once she has served half of the sentence imposed on her.
7 On 11 July 2013, I made an order releasing Ms Graham on bail. I also expedited the hearing of these appeals. The release on bail removed the prospect that Ms Graham would have served her sentence before the appeals were heard. But the comparatively short period still to be served, even if the sentence were not disturbed, called for a quick resolution of these appeals.
8 At the hearing of the appeals on 19 July 2013, Ms Graham attended in answer to her bail, but about 45 minutes late. The explanation for being late included that she had not spent the previous night at the home of her surety, which may itself have been a breach of the conditions of her bail. Following the hearing, Ms Graham was remanded in custody.
The grounds of appeal
SJA 1078/13
9 Ms Graham seeks leave to appeal on two grounds:
1. the sentence imposed on AR 1423/11 was manifestly excessive in all the circumstances of the case;
2. the learned magistrate erred by sentencing the appellant in relation to the breach of suspended imprisonment on AR 1422/11 when that charge could not lawfully be subject to a suspended sentence.
SJA 1079/13
10 The notice of appeal contained two proposed grounds. A third proposed ground was added, without objection, at the hearing, and the two original grounds were amended. In particular, the appellant sought to amend ground 1 to challenge the total sentence, rather than the sentence imposed for the single charge of driving without a licence committed in December 2012. The respondent did not object to the amendments, and I allow them. The grounds, with amendments underlined, are:
1. the learned magistrate erred by imposing a total sentence that was manifestly excessive in all the circumstances of this case;
(Page 6)
- 2. the learned magistrate erred by sentencing the appellant to a term of imprisonment in relation to a breach of a suspended sentence when that charge, driving with a blood alcohol concentration in excess of 0.08 could not lawfully have ever been the subject of a suspended sentence.
3. The learned magistrate erred by failing to take into account the time that the appellant had spent in custody in accordance with the provisions of s 87 of the Sentencing Act.
SJA 1078/13 and SJA 1079/13 – Ground 2
11 I will deal first with each ground 2. The respondent concedes that the term of imprisonment imposed for the offence under s 64 of the Road Traffic Act, whether suspended or to be served immediately, was not lawfully imposed. A person is not liable to be imprisoned for that offence.
12 There is, however, no appeal against the original sentence imposed in February 2011. The current appeal notice challenges only the sentences imposed on 9 April 2013 in the Magistrates Court at Mandurah. The appellant sought to amend ground 2 in this appeal to, in effect, challenge the sentence of suspended imprisonment. That cannot be done on the current appeal notice.
13 Ms Graham could bring a further appeal to challenge that sentence, although she is now nearly 2 1/2 years out of time. I see no utility in trying to adapt this appeal to challenge the original sentence. The sentence of immediate imprisonment imposed on 9 April 2013, under s 80 of the Sentencing Act, is wrong in law, and will be set aside.
SJA 1078/13 - Ground 1
14 At the hearing, Ms Graham sought to challenge the term of 10 months' suspended imprisonment that had been imposed in February 2011 on the ground that it was excessive. But the appeal is against the sentence imposed in the Magistrates Court in Mandurah on 9 April 2013. This is apparent from the appeal notice, and from the affidavit seeking an extension of time to appeal.
15 On this appeal, the challenge must be to the 7 months imposed by the magistrate in resentencing Ms Graham under s 80 of the Sentencing Act. The question is whether 7 months is manifestly excessive in the circumstances.
(Page 7)
16 The first question for the magistrate, under s 80(3) of the Sentencing Act, was whether it would be unjust, in view of all the circumstances that had arisen or had become known since the suspended imprisonment was imposed, to order that Ms Graham serve the 10 months that had been suspended. The considerations relevant to that question have been stated in several cases, including Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364; Trew v The State of Western Australia [2004] WASCA 155; and Brown v The State of Western Australia [2009] WASCA 74. The court must consider all material circumstances, including the period of suspended imprisonment and the circumstance of the offence for which that sentence was imposed, the nature of the offence which gave rise to the need to consider whether to activate the suspended sentence, and whether that offence occurred towards the end of the period of suspension. The legislative policy revealed in s 80(3) is that, prima facie, the court is to order that the suspended term be served: Hall [34].
17 The magistrate had urgently requested the transcript of the proceedings when Ms Graham had been placed on a suspended imprisonment order, but it had not been received. The magistrate had no information from the court file about the circumstances of the earlier offence, and none was put before her. Counsel appearing for Ms Graham in the Magistrates Court confirmed that Ms Graham had been warned of the consequences of breaching the order, and also stated that Ms Graham wanted the matter dealt with that day.
18 Counsel made a plea in mitigation which put forward some matters personal to Ms Graham. Counsel submitted that Ms Graham explained her offending on the present occasion by her desire to protect one of her children, who she believed was in a dangerous place. The magistrate also received a pre-sentence report.
19 Although she made no express finding, the magistrate must have determined that it was unjust to require Ms Graham to serve the whole of the suspended term. The magistrate expressly referred to the factor that the offending occurred near to the end of the period of suspension. The magistrate also apparently accepted the reason put forward by Ms Graham for why she was driving. Her Honour imposed only 7 months of the 10 month sentence.
20 This court also has no information about the earlier offence, other than that Ms Graham also had a blood alcohol content of more than 0.08 on that occasion. Counsel for the respondent advised that he had requested transcript from the Armadale hearing, but it had not yet arrived.
(Page 8)- Both parties agreed that I should receive and have regard to that transcript, if it becomes available in time. The court has now been advised that, due to a technical error, the transcript is not available.
22 The maximum sentence prescribed for the offence was imprisonment for 18 months. Counsel for each party referred the court to authorities which have considered the range of sentencing customarily observed. This range does not itself establish the range of a sound sentencing discretion, but is only one of a number of relevant factors in determining whether a sentence is manifestly excessive: Brown v The State of Western Australia [2011] WASCA 111 [6]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54]. In summary, offences of driving under suspension, where there had been four or more earlier offences, resulted in sentences of between 4 and 9 months: see Sheiner v Roberts [2009] WASC 281; Gable v Nardini [2010] WASC 321; Mears v Holleman [2010] WASC 39. The current sentence was within the range imposed for this offence when it is persistently repeated.
23 Ms Graham is now aged 39. The pre-sentence report contains little information about her background. A significant factor is Ms Graham's belief, manifest in her conduct, that she is justified in driving, despite being unlicensed and suspended from obtaining a licence, when she believes the circumstances require it. Ms Graham's record also contains four convictions for dishonesty (although all committed on the same day), one conviction for aggravated assault, and many traffic offences. The traffic offences include six offences of driving with higher than 0.08 blood alcohol content.
24 Ms Graham has three children, aged 11, 17 and 19 at the time of sentencing. The information before the court does not reveal whether they were living with her. She is unemployed and receives a disability pension.
25 Ms Graham had not previously been imprisoned. But on two occasions before the sentence imposed on 11 February 2011 she had been sentenced to terms of imprisonment that were suspended. On each of
(Page 9)
those occasions, the sentence was for, or included a sentence for, an offence against s 49 of the Road Traffic Act.
26 Ms Graham had a suspended term of 10 months' imprisonment, which had not been challenged, and was to be resentenced for that offence.
27 In those circumstances, I am not satisfied that ground 1 has been established. The sentence is towards the upper end of the normal range, but nothing has been put before me to show it is outside the range of a sound discretion.
SJA 1079/13 – Ground 1
28 The appellant does not argue that the magistrate erred in imposing a term of imprisonment, or in making it cumulative. The argument, reflected in the proposed amendment to ground 1, is that accumulating the 3 months and the 7 months for the earlier offence results in a total sentence that is manifestly excessive.
29 The correctness of the sentence of 3 months must be first considered. Taking into account the plea of guilty, the reason Ms Graham gave for driving, and the less serious nature of the accompanying offence under s 64AAA, it has not been shown that a sentence of 3 months falls outside the sound exercise of the magistrate's discretion for a seventh conviction under s 49. The appellant did not argue that 3 months, considered on its own, fell outside the range of a sound discretion.
30 In considering the question of totality, there are two limbs: first, the aggregate of the sentences imposed must be a just and appropriate measure of the criminality of the offending as a whole; second, the overall sentence must not be crushing.
31 The overall sentence is 10 months. It was imposed for offences nearly two years apart, on an offender with a large number of prior similar offences. The sentence of 3 months for the offence committed in December 2012 was lenient. Although her Honour did not expressly refer to totality, the most obvious inference from the way in which she dealt with the overall sentencing exercise is that she imposed a lesser sentence for the immediate offence, rather than order only partial accumulation of the sentences. The appellant had not demonstrated that the result, as a reflection of the overall criminality of Ms Graham's conduct, is wrong.
(Page 10)
32 A total sentence of 10 months' imprisonment, of which half will be served before parole, is not so long so as to fall within the second limb of the totality principle.
SJA 1079/13 - Ground 3
33 At the date of sentencing, Ms Graham had been in custody for 12 days. There is no other explanation for her being in custody during that time than that she was awaiting sentence for the current offences.
34 Her Honour referred to the period in custody in her sentencing remarks, but did not expressly allow for it in the sentence, either by reducing the term imposed or by backdating the sentence: see Sentencing Act s 87, and the general discretion residing in a sentencing court as explained in Narkle v Hamilton [2008] WASCA 31 [30] - [40]. The magistrate referred to the 12 days in custody in the context of whether it would be unjust to trigger the suspended imprisonment order.
35 The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time, how much of an allowance it will make, and how that will be reflected in the ultimate sentence. In a short sentence, the failure to take into account a period in custody may distort the effect of the sentence. In the present case, I am satisfied that the 12 days should have been taken into account. From the way in which the magistrate announced the individual components of the sentence, and from the way in which the total was structured, I am satisfied that her Honour made no allowance.
36 Leave will be granted with regard to ground 3, and the appeal allowed on that ground.
Conclusion
37 For these reasons, leave will be granted for ground 2 in each appeal, the appeal on that ground must be allowed, and the sentence of 3 months concurrent on resentencing for the offence against s 64 of the Road Traffic Act set aside. The necessity to correct that error makes it appropriate to also extend time.
38 Counsel for the appellant argued that, allowing the appeal to that extent, I should set aside the whole of the sentences imposed and exercise the sentencing discretion afresh. I am not satisfied that is so. The error in relation to the sentence for breach of s 64 was discrete and did not affect the sentences imposed on the other offences. No error has been shown as to those sentences, either the individual sentences or the total term.
(Page 11)
39 I grant leave on ground 1 in each appeal, but dismiss the appeal on those grounds.
40 Leave will be granted for ground 3 in SJA 1079/13 and the appeal allowed to that extent. In my opinion, this is an appropriate case to use the option in s 87(d) of the Sentencing Act and order that the period of 10 months commence on 28 March 2013, the day on which Ms Graham went into custody.
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