Griekspoor v Scott - [2000] WASCA 419

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GRIEKSPOOR -v- SCOTT [2000] WASCA 419

CORAM: ROBERTS-SMITH J

HEARD: 6 DECEMBER 2000

DELIVERED : 21 DECEMBER 2000

FILE NO/S: SJA 1162 of 2000

BETWEEN: MARKO HANNAS GRIEKSPOOR
Appellant
AND
STEPHEN JOHN SCOTT
Respondent

Catchwords:

Appeal - Practice and procedure - Sentencing - Magistrate obtaining information and records privately - Non-disclosure to parties - "Breach of fundamental rules in the administration of justice"

Appeal - Driving offence - Second conviction for driving under suspension - Whether immediate imprisonment inevitable - Suspended sentence - Authorities discussed

Sentence - Suspended sentence precluded because offender on parole - Options - Work and Development Order

Legislation:

Criminal Code (WA), s 656

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 53
Justices Act 1902 (WA), s199(1)(b)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(2)

Sentencing Act 1995 (WA), s 15, s 20, s 39(2), s 57A, s 76(3)

Result:

Appeal allowed
Sentence of 6 months' imprisonment set aside and fine of $4,000 substituted
Work and Development Order made in relation to fine

Representation:

Counsel:

Appellant: Mr T R Tydde
Respondent: Mr L B Robbins

Solicitors:

Appellant: Tydde & Co
Respondent: State Crown Solicitor

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

Browne v The Police (1999) 74 SASR 402
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Dinsdale v The Queen [2000] HCA 54
Dragic v Burrows [2000] WASCA 385
Eldridge v Bates (1989) 51 SASR 532
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Gifford v The King (1947) 49 WALR 97
GP (1997) 93 A Crim R 351
Haywood v Hubbard [2000] WASCA 416
Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998
Kovacevic (2000) 111 A Crim R 131
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Milentis v Chitty, unreported; SCt of WA; Library No 7826; 4 September 1989
Morse v The Queen, unreported; CCA SCt of WA; Library No 2026; 25 May 1977
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
O'Keefe [1969] 2 QB 29
Pantorno v The Queen (1989) 166 CLR 466
Patterson & Anor v Barnes & Anor (1965-66) 39 ALJR 507
Percy [1975] Tas SR 62
Police v Cadd & Ors (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394
Re JRL; ex parte CJL (1986) 161 CLR 342
Stickland v Halliday, unreported; SCt of WA; Library No 920006; 15 January 1992
Turner (1925) 18 Cr App Rep 161
Van Pelz (1942) 29 Cr App Rep 10

Case(s) also cited:

Allen v Gittos, unreported; SCt of WA; Library No 950719; 21 December 1995
Annetts v McCann (1990) 97 ALR 177
Cavanett v Chambers (1968) SASR 97
Gipp v R (1998) 194 CLR 106
House v The King (1936) 55 CLR 499
Kanda v Government of Malaya (1962) AC 322
Marshall v Spent [2000] WASCA 114
Mraz v R (1955) 93 CLR 493
National Union Workers v Davids Distribution Propriety Limited, unreported; Fed C of A (North J); 1 December 1998
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Slater v Whitehead [1999] WASCA 69
Smith v R (1992) WAR 527
The Commissioner of Police v Tanos (1958) 98 CLR 383

ROBERTS-SMITH J: This is an appeal by leave from a sentence of six months imprisonment imposed upon the appellant on a charge of driving whilst disqualified. The appeal raises some important questions about Court of Petty Sessions procedure.
On 29 August 2000 the appellant appeared before his Worship Mr McIntyre SM in the Court of Petty Sessions at Armadale and pleaded guilty to five charges, namely -
(1)Driving a motor vehicle on Westfield Road in a school zone at a speed exceeding 40 km per hour, namely 56 km per hour contrary to reg 1001(1)(d)(i) & (ii) of the Road Traffic Code 1975.
(2)Driving a motor vehicle with a blood alcohol concentration exceeding 0.08 per cent, namely 0.087 per cent contrary to s 64(1) of the Road Traffic Act 1974 (WA) ("the RTA").
(3)Being the driver of a motor vehicle refusing to stop when called upon by a member of the police force contrary to s 53(1)(b) of the RTA.
(4)Driving a motor vehicle on Westfield Road without being the holder of an appropriate valid driver's licence and being legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the RTA.
(5)Wilfully misleading a member of the police force then acting in the discharge of his duty by assuming a false identity contrary to s 97(b) of the RTA.
On 1 September 2000 the following punishments were imposed -
(1)Speeding in a school zone; fine of $100;
(2)Driving with an excessive blood alcohol concentration; fined $800 and licence disqualification of nine months;
(3)Failing to stop when required; fined $100;
(4)Driving whilst disqualified; six months imprisonment and disqualified for two years, cumulative;
(5)Giving a false name; fined $100.
On 13 September 2000 the appellant was given leave by Miller J to appeal against the sentence of 6 months' imprisonment on the following grounds.
"1.The learned Magistrate erred in law in sentencing the applicant by relying on documents in circumstances where:
1.1The documents had not been tendered to the learned Magistrate by the Prosecution or the Defence.
1.2Neither the Prosecution nor the Defence had requested the learned Magistrate to obtain or rely on the said documents.
1.3The said documents were not in their entirety made available to the Defence Counsel prior to the learned Magistrate sentencing the applicant.
1.4The said documents had been obtained by the learned Magistrate of his own volition.
2.The learned Magistrate erred in law and in fact in sentencing the applicant inter alia on the basis of materials that were irrelevant to the sentencing process namely a 'Criminal History Report' from Victoria Police setting out an occasion when the applicant allegedly failed to appear on charges in Victoria on 16 September 1999.
3.The learned Magistrate erred in fact and in law in obtaining statements of material facts for some of the applicant's prior convictions and relying on the same in the absence of any matters which may have been put in mitigation for the applicant at the time of conviction for those offences.
4.The learned Magistrate erred in law in failing to obtain a pre-sentence report on the applicant before sentencing him.
5.The learned Magistrate erred in law and fact in finding that the offences to which the applicant pleaded guilty had aggravating factors namely the existence of a small child in the motor vehicle driven by the defendant, the driving of the motor vehicle through a school zone at 56km per hour during the school zone and driving whilst on suspension.
6.The learned Magistrate erred in law in imposing a term of six months imprisonment for the offence of driving whilst suspended when the seriousness of the said offence was not such that only imprisonment could be justified or that the protection of the community required it.
7.The learned Magistrate erred in law in failing to take into account sufficiently or at all the impact a sentence of imprisonment would have upon the members of the applicant's de facto family.
8.The learned Magistrate erred in law in failing to reduce the penalty imposed on the applicant by virtue of the applicant's early plea of guilty.
9.The learned Magistrate erred in law in sentencing the applicant in placing undue weight upon his record of previous convictions.
10.The learned Magistrate erred in law in imposing a sentence on the applicant of 6 months' imprisonment that was manifestly excessive in all the circumstances for the conviction of driving while disqualified."
Before dealing with the procedure followed before the learned Magistrate it is convenient to say something of the circumstances of the offences.
About 2.40 pm on Thursday 27 July the appellant was driving a Mitsubishi sedan West on Westfield Road with his de facto wife and 4‑year‑old daughter in the front passenger seat. He was travelling through a 40 km school zone when his speed was recorded by a police radar. A police officer stepped out towards the road and signalled to the appellant to stop. The appellant acknowledged the request by looking at the police officer and nodding but he maintained his speed. Police officers got into their own vehicle and followed him using their lights and siren. He continued some 400 metres up the road before turning into a side street where he stopped. When approached by the police officers he said he was experiencing gear and brake problems. They asked him his name and address. The name and address he gave them were false. When told that he would have to attend the Armadale Police Station to verify the details he then told the officers that he did not want to stop because he did not have a licence and was on parole. He was then given a preliminary breath check which returned a positive result and subsequently at the Armadale Police Station a further breath test gave a reading of 0.087 per cent calculated back to the time of driving.
The police prosecuting sergeant ("the prosecutor") handed to the learned Magistrate a copy of the accused's record of convictions in Western Australia. That record showed a conviction on 20 January 1999 for driving under the influence for which he was fined $1,000 and disqualified for 6 months. There were also convictions on two counts of possessing an offensive weapon, one of possessing a smoking implement and one for breach of bail. On 10 December 1999 he was convicted on three charges of burglary and sentenced to 6 months' imprisonment on each charge cumulative. On the same date he was convicted of five counts of fraud and was sentenced to a total term of imprisonment of 6 months. Also on the same date he was convicted of driving without a licence (his licence having been suspended for non-payment of fines) and driving under the influence. On the first of those convictions he was fined $400 and disqualified for 9 months cumulative; on the second he was fined $1,500, his driver's licence was cancelled and he was disqualified from holding or obtaining one for 2 years, concurrent. There was a third conviction for driving an unlicensed vehicle for which he was fined $150.
Mr Tydde who appeared for the appellant both before me and the Court below, then presented a plea in mitigation. He told the learned Magistrate that the appellant lived at Kelmscott with his de facto wife in a home owned by her. They had been in that relationship for some four months. Four of her children were living at home and the appellant had assumed responsibility with her for parenting them. He was 31 years of age and received sickness benefits of $278 a fortnight. He had a debt with Newstart of $38 per week with $500 outstanding. The mortgage commitments on his de facto wife's property were $388 per month. He and she share expenses.
It was admitted that the offences occurred while the appellant was on parole.
Counsel told the learned Magistrate that the appellant had obtained a lift to the railway station in the morning by a friend of his de facto. He was going to Centrelink "Job Club" about 9am to undertake a work ready course. While he was waiting he saw that cans of "Moonshine" were being advertised for sale at $1 a can. He purchased two, drinking one on the way to and one on the way home from "Job Club". The friend collected him from the railway station about 10.30 am and took him home. When he arrived his wife was asleep in bed. When she woke up later, after the friend had left, she was unwell. She was sweating, shaking and generally looked ill. Counsel said the appellant panicked and decided to drive to the chemist shop two kilometres away to obtain medication because she was unable to drive. He had never been in a stable relationship and was acting out of concern for his wife. He had her daughter with him.
According to counsel it was on the way back from the chemist shop that the appellant was intercepted by the police. The vehicle he was driving had no speedometer. He was doing 56 km per hour but believed he was travelling at the same speed as cars in front of him. He drove some 400 metres up the road from the police, turned up a dead end street and stopped. He gave a false name on the spur of the moment but shortly thereafter and while still at the scene he gave the police his correct name before they had been inconvenienced.
It was submitted that no actual danger had been created by his driving.
Counsel tendered to the learned Magistrate a medical certificate relating to the wife together with several references from people as to the family situation of the appellant and the dependence of his wife and children upon him
The learned Magistrate then enquired when the appellant had arrived in Western Australia to which counsel responded it was 1998. His Worship said he asked that because he noticed the appellant had "opened his account" in January 1999 with an offence of drunken driving and then on 10 December another drunken driving and driving under suspension as a result of breaching the previous order. This then was his second driving under suspension.
His Worship then said (AB11) -
"Alright, stand up Mr Griekspoor. Surely you must work it out for yourself; if you're on parole and you commit the same sort of offence, driving under suspension and affected by alcohol, how can you expect anything other than a sentence of imprisonment? Clearly, that’s the first option I'm going to consider. You can wait over there. You'll be detained in custody until I sentence you. I'll have a chance later in the day to read this material. And I'll then have a report from the probation authorities about your general response to parole, apart from the commission of these offences. So take you place over there."
Later on, his Worship called the matter on before him again telling the appellant -
"Well I'm going to remand this matter. I need further information. And that will be coming back on Friday. You're in a situation where you've now been convicted of a number of offences, that were committed whilst you were on parole, as I've indicated. Some of the offences that were dealt with in the District Court (sic) included the same type of combination of offences, that is under suspension and affected by alcohol. You're going to be remanded in custody to this Friday 1 September. And when I've got all the information I require, you will be sentenced on that day."
And after explaining that he would not grant bail to the appellant because that would just be raising false hopes he reiterated that he was to appear on the Friday -
" … Once I've got the information that I require."
When the matter was called on again the following Friday 1 September Mr Tydde began by informing the Court that the conviction for driving without a licence in December 1999 had nothing to do with the burglary offence for which he was also sentenced at that time, to which his Worship responded -
"I've got a statement of facts. I've read all the issues in relation to those matters." (AB16)
In the course of further submissions in mitigation by Mr Tydde about the appellant's previous convictions his Worship expressed his understanding of the effect of those by saying the appellant was not entitled to any form of discount but the record was not something which aggravated the present offences. It is clear both from what he said then and subsequently that his Worship was well aware that an otherwise appropriate sentence could not be increased by reason of the appellant's previous convictions and that he was looking at them and took them into account only for the purpose of determining whether or not such a sentence should otherwise be reduced.
After a few minutes more of submissions from Mr Tydde his Worship indicated that he as going to stand the matter down again because he had other cases to deal with and would give Mr Tydde an opportunity to address him further later.
When the matter was subsequently recalled counsel made further submissions. In particular, he submitted that the appellant had potential for rehabilitation. He said he was now in a responsible position as a father and a husband in a stable relationship and it was the first one he had for many years. The children and his de facto were dependent on him. There are four children between 4 and 12 years of age. The consequences of a term of imprisonment for the family was a relevant and "exceptional" circumstance. His de facto wife had been abandoned some two years previously and had significant counselling as a consequence. Her 12‑year‑old son had attempted suicide on two occasions following the breakdown and her daughter abruptly left school. One of the boys has ADHD and she finds it extremely difficult to cope with him on her own. He has been in trouble with the school authorities and was suspended. The 8‑year‑old child had become aggressive and as a general observation the family was "out of control" before the de facto wife met the appellant. His influence had been to stabilise the family and improve the behaviour of the children. He has a good bond with them and spent time with them. The family finances had improved. A term of imprisonment could well result in the breakdown of the family unit that had developed over the last few months.
The appellant's parole was due to expire on 16 August - he had been on parole since 16 April 2000.
Following the completion of counsel's plea in mitigation his Worship commenced to give his reasons for sentence. It was what transpired in the course of these that gave rise to the issues the subject of this appeal.
After commenting briefly on the circumstances of the offences his Worship made reference to the appellant's criminal history which indicated an awareness of the circumstances of particular offences which could not have been obtained from anything said in Court. His Worship then continued (at AB21):
"I have in front of me a certificate from the Fines Enforcement Registry which shows that you owe in excess of $6000 in outstanding fines, so it's quite obvious that fines serve no deterrent purpose because of those very substantial fines which are now outstanding.
I also have by way of further background information a record of your eastern states convictions which show that you've been in trouble before, and I'm referring to these matters just by way of background because, as has been rightly pointed out, the presence of a record doesn't aggravate any offending; it merely indicates that you're not entitled to any sort of discount that might be offered to a first offender and of course it provides me with a background and information about you which gives me a better picture of the person that I am dealing with.
You were sentenced to imprisonment in Queensland, and I'm relying on my memory here because I can't find the piece of paper - -"
At that point counsel for the appellant interjected saying that he had not seen any of the documents to which the learned Magistrate was referring. There was then the following exchange -
"MR TYDDE:        Well, I have a problem with you referring to documents, in sentencing my client, that I've never seen, sir.
HIS WORSHIP:     Mr Tydde, I just made it plain to you that the documents were tendered to you. Perhaps you didn't realise they were there.
MR TYDDE: I asked for all of them at - -
HIS WORSHIP:     I'll stand the matter - -
MR TYDDE: The prior convictions and that was all I was given, as far as I was concerned.
HIS WORHSIP:     The documents were at the back of the bundle of - -
MR TYDDE: I wasn't told that they were there.
HIS WORSHIP:     They were there. I'll stand the matter down so you can look at them.
MR TYDDE: Thank you.
HIS WORSHIP:     It's not a problem. You seem to be trying to make it a problem. It's not - -
MR TYDDE: Well, it is a problem when you look at documents, and sentence my client, that I've never seen, if it please the court.
HIS WORSHIP:     Call the next issue (sic) please. I've already discussed the matters to the point where everyone else understands what the situation is."

The matter was then adjourned.
When the hearing resumed the following exchange occurred (AB23):
"MR TYDDE:        Sir, I don't have any further submissions. It's my view that the sentencing process has totally miscarried in this particular case and I don't have any more comment. I reserve my position, if it please the court.
HIS WORSHIP:     I beg your pardon. I'd have you repeat that.
MR TYDDE: I said I regard the sentencing process as having miscarried and I don't wish to make any further comment. I'll reserve my position, if it please the court.
HIS WORSHIP:     Well, this is the sentencing process so if you have something to contribute I'd suggest you should put it before the court.
MR TYDDE: No. I don't want to be seen to be validating in any way what's gone on and therefore I have no further submissions to make, if it please the court.
HIS WORSHIP:     Well, I don't understand what your submission means. Would you like to elaborate upon it.
MR TYDDE: I don't believe the documents before you are properly before you and I think the whole process has miscarried and I don't feel that I can make any useful further comments.
HIS WORSHIP:     In what sense do you say it's miscarried?
MR TYDDE: Well, I'll reserve my position in relation to that for another place.
HIS WORSHIP:     Well, it's totally inappropriate, Mr Tydde.
MR TYDDE: It's my submission it's not. What has occurred has been totally inappropriate and in 25 years of practice it's never happened to me that a magistrate has done this - -
HIS WORSHIP:     Done what?
MR TYDDE: Gone off on his own volition and obtained information without reference to the defence. On Tuesday you indicated you were going to have my client assessed by a probation officer in relation to his performance on parole. That hasn't occurred. That's the information I thought you were obtaining. You've obtained information that was never put before you by the prosecution.
You have gone into a statement of material facts of previous matters where the defence material was not put before you and the whole process, in my view, has just miscarried and I don't think I can add any further useful comments.
HIS WORSHIP:     Well, I totally disagree with what you say. I gave you the opportunity of looking at the information. That was the very purpose for which it was given to you. Now, if you mistakenly believe there was no record attached; it as (sic) attached.
MR TYDDE: Sir - -
HIS WORSHIP:     That's the reason - don't interrupt me, Mr Tydde - that's the reason why you were given the information. I indicated when I remanded the defendant that I was seeking further information, so the transcript will show what I said. The further information that I sought was an interstate record so I have a better indication of the background of the person I'm dealing with and the circumstances surrounding it.
The reason why I obtained a copy of the statement of facts of earlier matters is so that I could consider the circumstances of the offence and I could get a better picture of the person. So if you have not seen it before that's no concern of mine because it's a practice of mine that I follow. Now, I'm in the process of sentencing your client. You should put therefore in front of me all the relevant information" (emphasis added).
Counsel then explained that he had made a request at 9.45 that morning to look at the record (of WA convictions) that had been tendered to the court the previous Tuesday. He explained that it had been handed to him by the court clerk a couple of minutes before 10 am. It was on top of a bundle of documents. He said that he was not told there were any other documents attached to that at which he should look and he had not done so. The Magistrate then said (AB25):
"Well that's your view and I disagree with it. Now, I have given you the opportunity of looking at all of the information. It's been in your possession. I've recalled the matter at your convenience. Now, if you'd like further time to consider the issues I'll stand the matter down so you can consider the issues."
Counsel reiterated that he did not need any further time to consider the matter and he had made his submissions.
The learned Magistrate thereupon continued with his sentencing remarks to the appellant commencing with the observation that -
" … I believe it's incumbent on the court to look at the circumstances and to take as much information into account as is possible before the decision is made on the sentencing process. That's a practice that I've followed for years and a practice that I'll continue to follow …"
His Worship referred to the appellant's relationship and the circumstances of that mentioned again that he owed the Fines Enforcement Registry in excess of $6,000 and then mentioned that the record indicated that in May 1998 he had been sentenced to a period of imprisonment in Brisbane.
At that point counsel for the appellant again interjected saying he had not been given a copy of any Queensland report nor any document in relation to fines enforcement. His Worship said that he did not intend to respond and continued with his sentencing remarks.
In addition to the court materials I had before me on the appeal an affidavit of Mr Tydde sworn 7 September 2000 and an affidavit of the prosecutor sworn 22 November 2000.
In his affidavit Mr Tydde states that following the statement of facts given to the court by the prosecutor on 29 August 2000 he commenced his plea in mitigation on behalf of the appellant. In the course of that he tendered a medical certificate about the health of the appellant's de facto together with various references from the people about that relationship. His Worship then indicated that he would take time to read this material and obtain an oral probation report as to the appellant's performance on parole and stood the matter down until later in the morning. According to Mr Tydde when the matter was recalled later than morning his Worship said he needed further information and adjourned the matter to Friday 1 September for sentence remanding the appellant in custody.
Mr Tydde deposes that on 1 September he attended the court and prior to the hearing commencing asked for an opportunity to examine the record of prior convictions tendered by the prosecutor the previous Tuesday. He says that a short time before his Worship dealt with the matter the court clerk handed him some documents held together with a butterfly clip. The top document was the list of prior convictions he had requested. He was not advised that there were other documents he should look at in the bundle. He quickly examined the record and returned the documents to the court clerk.
In his affidavit Mr Tydde states that once his Worship had commenced his sentencing remarks and had begun referring to material which had not been seen by Mr Tydde he raised that with the Magistrate and was then handed a bundle of documents by the clerk and the case was again stood down. He says he arranged for those documents to be copied during the adjournment and the copies are annexed to his affidavit. There is no document amongst those showing the record of convictions in Queensland and no document as to fines enforcement.
Mr Tydde states that at no stage on either the Tuesday or the Friday had his Worship indicated that he intended obtaining other documents.
In his affidavit the prosecutor deposes that he has appeared in front of this Magistrate on many occasions and it is common practice for his Worship to request from the prosecution information about defendants. This may include the material facts of previous offences. His Worship requests these details by marking the criminal history of the defendant alongside the offences in respect of which he wants additional information and handing the criminal history sheet back to the prosecutor via the bench clerk. The usual practice is for the defendant to be told that further information is being sought and the matter is remanded. He states that in relation to these particular matters the material facts in relation to previous offences dated 10 December 1999 in Western Australia were provided to his Worship through the bench clerk by the prosecutor's staff on his instructions prior to the sentencing day. He continues to say that it would appear that Queensland and Victorian criminal records were also provided to his Worship by him or his staff. He is not able to say now with certainty whether the eastern states record was obtained by police prosecutions in Armadale as that may already have been obtained by the arresting officer and may have already been on the brief. He observes finally that fines enforcement information is available to the Magistrate by direct access through the court computer and that details as to a defendant's fine enforcement status may be obtained by the Magistrate from his staff while he is in court.
The main thrust of the appellant's submissions before me were directed to ground 1 which may be encapsulated in the proposition that his Worship erred in law in relying upon documents which had not been tendered to him in open court and which in their entirety had not been made known to defence counsel prior to sentencing.
This is a case in which it is useful to start from fundamental principle.
In Re JRL; ex parte CJL (1986) 161 CLR 342 the High Court made absolute an order nisi for prohibition directed to a judge of the Family Court of Australia where a court counsellor had approached the judge in her private chambers to complain about the intended adjournment of the hearing of a custody application and volunteered information about her qualifications as a prospective expert witness and canvassed aspects of the proceedings in the absence of counsel for the parties. The majority (Gibbs CJ, Mason and Brennan JJ) held that the actions of the counsellor and judge gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the issue. All members of the court considered it undesirable and inappropriate that a court counsellor should make representations about pending proceedings to a judge of the court privately and in the absence of the parties or their counsel. Gibbs CJ observed (at 346):
"It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v Government of Malaya [1962] AC 322 at 337. McInerney J stated the practice as it is generally understood in the profession in Reg v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127 as follows:
'The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.'
The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court." (See also Mason J at 350)
On the same point Mason J said at 351:
"The receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge."
Order 25 r 5 of the Family Law Rules (Cth) authorised the court to order a report from a court counsellor or welfare officer and to receive it in evidence. As Gibbs CJ said (albeit obiter) at 348:
"The rule gives the Family Court the power either to receive the report in evidence, or not to receive it, but quite clearly it does not (even if it validly could) give the Court power to act on the report without receiving it in evidence, or to admit it in evidence without making it available to the parties. The effect of O 25 r 5 is not directly in question in the present case and it is unnecessary to consider fully its effect and in particular unnecessary to consider whether or not Asche SJ was right in Mulcahy and Mulcahy [1978] FLC 90-425 in receiving a report and making it available to counsel but not to the parties.
There is nothing in any of these provisions to entitle the court counsellor to interfere in the judicial process or to entitle a judge to receive a private communication from a court counsellor."
For his part Mason J, having reviewed the relevant provisions of the Family Law Act 1975 (Cth) and the Family Law Rules, said (at 354):
"Be this as it may, three important points emerge from this review of the provisions of the Act and the Rules. The first is that a report is only to be taken into account on the footing that it is evidence received at a hearing in the presence of the parties or their legal representatives. The second is that the court counsellor who prepares a report is a potential witness. And the third point is that, although the counsellor is an officer of the court, he is not authorized to make any communication to the court with reference to the resolution of the issues in a case before the court, otherwise than by means of oral testimony or a report pursuant to s 62A, s 63(2) or O 25 r 5. He is not an officer of the court who has any function, except in the manner indicated, to assist a judge in carrying out his judicial responsibilities."
Mr Robbins, counsel for the respondent, relied on s 15 of the Sentencing Act 1995 (WA) as justifying his Worship's approach in this case. That section provides that in deciding what sentence to impose a court may inform itself in any way it thinks fit. He argued that the Fines Enforcement Registry is part of the Court of Petty Sessions at Perth (s 6 Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)) and that accordingly the learned Magistrate was entitled by virtue of s 15 of the Sentencing Act to have regard to the fact that the appellant had outstanding fines of $6,000 and to matters relating to his interstate criminal history. He submitted that in any event his Worship did so for an entirely proper purpose namely, by way of background and to get a better picture of the appellant. He acknowledged that the presence of a record does not aggravate any offence; what was done was done to ascertain whether any discount on sentence might be given to the appellant (AB21).
An offender's history of previous convictions, sentences imposed and whether fines previously imposed have been paid are all matters clearly relevant to sentence and properly to be taken into account. But relevance is not the issue here. The issue is the process by which that occurred.
Section 15 of the Sentencing Act had its predecessor in s 656 of the Criminal Code (WA). Section 656 originally relevantly read:
"The Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed." (emphasis added)
The section was amended in 1985 (by s 25 of No 119 of 1985) to read:
"Before passing sentence or otherwise disposing of the case according to law, the court may inform itself in such manner as it thinks fit in order to decide upon the proper sentence to be passed, to be made, or other disposition of the case." (emphasis added)
and was eventually removed from the Criminal Code and relocated in the Sentencing Act 1995 (WA) in its present form as s 15:
"To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit." (emphasis added)
Neither s 656 Criminal Code nor s 15 Sentencing Act has been understood as authorising a court to obtain information privately, out of court and without reference to the defendant or his legal representative (the same of course applies were information in favour of a defendant to be obtained in that way without notice to the prosecution).
The precise point was raised in Morse v The Queen, unreported; CCA SCt of WA; Library No 2026; 25 May 1977. Burt CJ referred (at 5) to what fell from Dwyer CJ in Gifford v The King (1947) 49 WALR 97 -
"It is the practice, and has been for a long time past, that evidence of character should be handed up in the form of written testimonials, or certificates of character, and so forth, and I think it is obvious, that if that is permitted in favour of the prisoner, it is equally open for the Crown to submit a report by the police with the intention of presenting any opposing view, whether minimising the value of the evidence regarding character, or lessening the possibly favourable view which might be taken of it. It is not necessary that such testimony should be given on oath and comply with the strict rules of legal evidence. It is open to a Judge to receive, in such circumstances, testimony of a sort which may not comply with such rules, for it, even so, may come within rules of logic and assist in enabling him to reach a proper conclusion. I suggest, moreover, that it is open to counsel on either side to put their views forward as to the crime, and even remotely attendant circumstances of the crime, or the antecedents of the prisoner. It is to be remembered that in many cases what is brought to a Judge's consideration is not matter of fact, or opinion of an expert witness, but mere personal opinion, suggestions, and general repute. The same rigid rules cannot be applied to such matters as bind tribunals of trial. Moreover, the Judge, in my view, is entitled to make his own enquiries in order to determine the propriety of a particular sentence. It may be that he requires reports from particular persons regarding an accused person, or as to his mental attributes, or mode of life, and I think a Court of Appeal should hesitate before seeking limitations on the right of the Judge to make such enquiries."
Although counsel to deal primarily with the question whether sentencing information had to be before the court as evidence, Burt CJ thought it clear that Dwyer CJ was not intending to suggest that information could be obtained by a court privately without reference to the parties or their counsel. His Honour said (at 7) -
"In my opinion the remarks of Dwyer CJ were not intended to lay down any general proposition of the law to the effect that after conviction the trial Judge can receive on oath or unsworn any information from any source and whatever its tendency might be and make findings of fact upon it adverse to the prisoner and then act upon those findings in the exercise of his discretion in fixing the appropriate sentence. If the remarks are properly to be understood in that way I am unable to accept them as being a statement of the law. I think the remarks which, as I have already stated, are not to be found in a reserved judgment were only directed to "the practice" which was then established and which has since been followed whereby the sentencing Judge receives reports including "pre-sentence reports" and references and the like bearing upon matters personal to the prisoner - his age, occupation, marital status, and so on - and bearing upon his general reputation in the community. This is constantly done in an informal way. The information is or should be shown to the prisoner or to his counsel before it is tendered and more often than not it is accepted as being accurate and thereafter the Judge does act upon it. But all this is really done sub silentio by consent and it is done in that way for convenience and, I might add that the practice is almost invariably favourable to the prisoner. It is, however, another matter altogether when the information so supplied contains statements particular or general about the prisoner which are prejudicial to him in that their tendency is to show the offence statements are denied by the prisoner. In such a case, in my opinion, that information in that form is simply not admissible. It cannot be considered by the Judge unless it is sworn to and proved by evidence which is according to the rules of evidence admissible. I can find nothing in s 656 of the Criminal Code which supports the view acted upon by the sentencing Judge in the present case. The words "as he thinks fit" in the paragraph now under discussion are words which make the sentencing Judge the judge of the relevance of the tendered evidence to the discretion in sentencing which he is called upon to exercise. They are not words which give any different or extended meaning to the word "evidence" so authorising the reception of hearsay information.'

In relation to previous convictions Burt CJ quoted Turner (1925) 18 Cr App Rep 161 in which it was said:
"It cannot be to clearly understood that where previous convictions are relied on for any purpose in a trial they must be either (a) proved by lawful evidence or (b) expressly admitted by the accused person."
and referred to Van Pelz (1942) 29 Cr App Rep 10 in which the practice was restated by the Court of Criminal Appeal specifically in reference to evidence being given about a prisoner who has been convicted.
In GP (1997) 93 A Crim R 351 when imposing a suspended sentence of 2 years imprisonment on an offender who was convicted of having a sexual relationship with a child under the age of 16 years, the sentencing judge referred to the law in the Netherlands and to the legal age of marriage for girls in classical Rome and made the observation that the literature on child sexual abuse was by no means of one mind as to the inevitability of harm. None of this had been put to his Honour at the hearing and there had been no previous mention of the literature to which he was referring. As to this, Malcolm CJ said (ibid, 366):
" … In support of ground 3 it was also contended that, by his reference to the 'literature on child sexual abuse is by no means of one mind as to the inevitability of harm' and what followed after it, the learned judge raised matters about which there had been no opportunity for submissions by the Crown or the respondent. In this context, s 21 of the Sentencing Act 1995 (WA), which was proclaimed to come into operation from 4 November 1996, entitles a judge to inform himself or herself in any way he or she thinks fit for the purposes of sentencing an offender. This was the position under the former s 656 of the Criminal Code. At common law, a judge is entitled to refer to learned works of authority on a particular subject of history, literature, science or art. By s 72 of the Evidence Act 1906 (WA) in matters of public history, literature, science, or art a court is entitled to refer to 'such published books, maps or charts as the court considers to be of authority on the subjects to which they respectively relate, in such matters': cf Casley-Smith v FS Evans & Sons Pty Ltd (No 4) (1988) 49 SASR 339 at 346. In Timbury v Coffee (1941) 66 CLR 277 at 283-284, Dixon J, having informed himself from a text on the subject, made findings on the impact of acute alcoholism on the mental processes of a testator. In Alexander (1981) 145 CLR 395 at 409 Stephen J relied upon published works of psychology in reaching conclusions as to the reliability of identification. In this context psychology is a recognised science.
However, where a judge undertakes such a reference to works of authority, either pursuant to the statutory provisions or at common law, he is not entitled to inform himself on any contentious matter without giving the parties an opportunity to controvert or comment upon the work to which reference has been made: Cavanett v Chambers [1968] SASR 97 at 101 per Bray CJ; Horman v Bingham [1972] VR 29; Fairbank v Jones (1975) 10 SASR 367; and Gordon M Jenkins & Assoc Pty Ltd v Coleman (1989) 23 FCR 38. That did not occur in the present case."
At 395, Murray J noted the Crown "rightly criticises" the sentencing judge's digression in this area on the ground of the failure to give counsel the opportunity to make submissions, if it was to be a matter in any way material to the sentence.
In Pantorno v The Queen (1989) 166 CLR 466 the High Court quashed a conviction where the proceedings had been conducted before the primary judge on a common and express understanding by the prosecution and defence that the drug had been in the possession of the accused for his own use, but the judge imposed sentence on the basis it was for supply to others. It was not open to the judge to sentence on that basis without giving the accused's counsel an opportunity to show why the accused was not liable to the more severe penalty.
In my view it was not appropriate in the present case for his Worship to privately seek information about the appellant whether from the prosecution, from court records or other sources in the way in which he did. It is a fundamental denial of justice for a court to deal with a defendant on the basis of information privately obtained outside court which has not been disclosed to him and which he has not been given an opportunity to challenge nor explain.
This is not to say it was not open to his Worship to seek additional information. He was certainly entitled to do so - and it could not be said to have been wrong in law for him to obtain it himself from court records or the Fines Enforcement Registry - although as the High Court pointed out in JRL desirably any information sought should be requested in open court - but where that is done it is incumbent on the judicial officer to refer to it on the public record and make that information and material available to parties and give them an opportunity to address it either by evidence or submissions. His Worship erred in law in proceeding to sentence the appellant having regard to material not made known to the appellant or his counsel.
The question which then arises here is whether there was in the end a substantial miscarriage of justice in the circumstances of this case (s 199(1)(b) JusticesAct 1902 (WA)). This involves consideration of two stages of the process.
The first was when in the course of his sentencing remarks the appellant's counsel told his Worship that none of the additional documents to which his Worship was then referring had been made known to nor seen by counsel. The proceedings were adjourned and the documents were handed to counsel. He was given an opportunity to put to his Worship whatever submissions he thought necessary. Counsel declined to do so on the ground that in his view the sentencing process had then miscarried and was incapable of being rectified. He elaborated on this in submissions to me suggesting that he was concerned not to be seen to be lending credibility to a fundamentally flawed process and that not least of all because in the circumstances it was apparent the learned Magistrate had already made up his mind on the sentence to be imposed.
As to this it is put by counsel for the respondent that the process had not miscarried and that defence counsel was under a duty to take instructions and to put to the court whatever was necessary on behalf of his client regarding that material. Whilst I accept this proposition in principle I also think there is merit in Mr Tydde's response to the effect that in reality that was not a practical option at that point. His Worship had obviously already determined upon the sentence he intended to impose and he had embarked upon giving his reasons therefor; the material included not only a record of interstate convictions but police statements of material facts in respect of individual convictions. None of that material had been put by the prosecution, none of it had been canvassed in open court and it would have been necessary for counsel to take instructions from his client in respect of each conviction and sentence, the circumstances relevant to each offence and what mitigating factors had been put to the court or existed in relation to each. Notwithstanding the learned Magistrate's offer to stand the matter down again and give counsel an opportunity to read the material and take instructions on it that was not a realistic option in the circumstances. More pertinently though, the process which had been adopted by the learned Magistrate gave rise to the very perception identified by the High Court in Re J R L namely that his Worship was not bringing an impartial mind to the resolution of the issue (see also Browne v The Police (1999) 74 SASR 402).
The second stage more obviously reinforces that conclusion. I refer here to the fact that even at the end there were two documents to which his Worship had regard which were never provided to the appellant or his counsel: these were the Queensland record of convictions and the Fines Enforcement certificate. When this was pointed out to the learned Magistrate by counsel at the hearing his Worship simply stated he did propose to respond to that and continued with his sentencing remarks. One consequence of this was that the appellant was never asked whether or not he admitted the Queensland convictions. As already noted a court may have regard to a defendant's previous convictions only if they are admitted by the defendant or otherwise proved by the prosecution (Morse (supra)) - neither occurred here (the interjection by the appellant at AB21 that he pleaded guilty to all charges is on no reasonable view any sufficient acknowledgment of the Queensland record of convictions). The same applies with respect to the Fines Enforcement certificate.
In Patterson & Anor v Barnes & Anor (1965-66) 39 ALJR 507 the High Court granted special leave to appeal and allowed the appeal instanter in respect of a costs order upheld by the New South Wales Court of Appeal. The trial judge had dismissed the substantive action with costs. He adjourned the hearing to enable the parties to provide information to him for the purpose of assessing costs. On the adjourned hearing each counsel gave his Honour a figure in response to that request. There was an appeal to the Full Court against the assessment. During argument of that appeal counsel for the respondents realised the figure he had given to the trial judge and to which his Honour had referred in his judgment on costs was not an estimate of the defendant's costs as had been requested, but of the plaintiff's. The Full Court was apprised of this mistake after adjourning the appeal. Their Honours thereupon returned to the Bench and announced that they intended to consult with the trial judge or call for a report from him. They then reserved judgment. Eventually, their Honours dismissed the appeal. In their written reasons they explained that they had consulted with the trial judge who informed them he had no recollection of being told that the figure represented the costs estimated to be payable by the plaintiffs to their own solicitors. Nonetheless, their Honours professed themselves satisfied, as a result of their consultation with the trial judge, that his assessment was not affected by the error but was based on his own independent assessment of a proper amount.
Barwick CJ described this procedure (ibid, 508) as:
" … a breach of fundamental rules in the administration of justice,"
adding:
"Here a private consultation took place, the detailed nature of which is unknown, but of which the subject matter is disclosed by the judgment of the Full Court. It was a consultation by the appellate judges with a trial judge as to what material influenced him in his judgment and, perhaps also, as to the manner in which he approached the exercise of his discretion. As a result of what was then told them by the trial judge, their Honours formed for themselves, as they say, a conclusion, in substance, as to what effect the evidence before him had had on the exercise by the trial judge of his discretion. This, in my opinion, was an irregular course, and, though well-intentioned, was a departure in a basic respect from the course which ought to be pursued in the administration of justice.
It was such a fundamental breach that in my opinion it requires that special leave be granted, notwithstanding the very small amount which can be in difference between the parties and the expense to which by their own litigious bent they have already exposed themselves. Special leave to appeal should therefore, in my opinion, be granted.
As the parties placed their full argument before us, and each agreed to treat the argument on the motion for special leave as the argument on the appeal, should special leave be granted, in my opinion the appeal should be allowed."
In the present circumstances it seems to me the process followed by his Worship did lead to a substantial miscarriage of justice and the appellant must succeed on grounds 1 and 3.
Ground 2 asserts error in law and fact by the learned Magistrate in sentencing the appellant "inter alia" on the basis of "irrelevant materials". These were said to be a Criminal History Report from Victoria Police. This ground may be shortly disposed of. An offender's criminal history is plainly relevant to the sentencing process; whether or not any particular aspect of it should be accorded any weight in the particular circumstances is a different question.
Ground 4 complains the learned Magistrate erred in law in failing to obtain a pre-sentence report before sentencing the appellant. His Worship initially said he was going to do that. For some reason he did not. Nonetheless, the appellant was represented by counsel whose responsibility it was to put before the court all relevant information about the appellant, his antecedents and the circumstances of the offences. Section 20 of the Sentencing Act 1995 (WA) states that if a court considers it would be assisted in sentencing an offender by ordering a pre-sentence report, it may order one. The section does not impose any duty nor requirement to do so. There was no obligation upon his Worship to obtain a pre-sentence report. It cannot be said the learned Magistrate made any error of law in not obtaining the pre-sentence report he had foreshadowed.
Grounds 5 - 10 inclusive all raise different facets of the complaint that in imposing a sentence of 6 months imprisonment the exercise of the learned Magistrate's discretion miscarried. The specific matters in respect of which it is contended his Worship erred either by taking them into account at all or attaching too much weight to them are said to be the presence of a small child in the appellant's vehicle at the time, the fact that he drove it through a school zone at 56 km per hour and that he was under suspension at the time. It is also said his Worship placed undue weight on the appellant's record of previous convictions. The more general grounds are that the Magistrate erred in imposing a term of 6 months imprisonment when the seriousness of the offence or the need to protect the community were not such that only imprisonment could be justified and such a term was manifestly excessive in the circumstances. There were also complaints his Worship failed to take into account sufficiently or at all the impact the sentence of imprisonment would have on the members of the appellant's de facto family and his early plea of guilty.
His Worship expressly referred to the emphasis placed by counsel in his submissions on the appellant's relationship with his de facto family. However, his Worship noted that was of very limited duration and it is clear he gave it less weight than he would have done had it been a long-standing relationship with, as he put it, "a proven history" of involvement with the family.
He then referred to the appellant's previous history of convictions and to the fact there were unpaid fines of $6,000. He summarised the effect of all this in the following way (at AB26):
" … my view is that the picture shows that I'm dealing with a person who has a limited regard for the law because of the factors that I've outlined and a person who, at this point in time, hasn't given a sufficient indication that personal factors outweigh other factors which are the community's concern about drink-related driving offences and community concern about driving under suspension, especially when those offences are combined so shortly after you were sentenced to imprisonment for a combination of similar offences and whilst you were on parole.
In my view the circumstances surrounding this incident are aggravated by the combination of factors. You had a small child in your car. You were travelling at speed through a school zone. The 40-kilometre per hour limit is there for the purpose of trying to protect vulnerable children from speeding drivers. You were speeding you were affected - -
MR GRIEKSPOOR: Excuse me, your Honour, sorry to interrupt - -
HIS WORSHIP: No, don't interrupt me, please. You were speeding, you were driving under suspension, you were affected by alcohol and in those circumstances it's my view that a period of imprisonment is the only appropriate option that will reflect the circumstances."
His Worship then imposed the term of 6 months imprisonment and 2 years cumulative disqualification in respect of the offence of driving under suspension; he declined to backdate the commencement of the term of imprisonment.
All of the matters to which it is complained his Worship gave undue weight were clearly relevant to the exercise of his sentencing direction. The weight to be given to them was a matter properly for him.
His Worship's conclusions that (immediate) imprisonment was the only appropriate option open and that a term of 6 months was the appropriate term are more problematical.
In Stickland v Halliday, unreported; SCt of WA; Library No 920006; 15 January 1992 Rowland J said at 4:
"One starts with the basic sentencing principle that 'men are not sentenced on their records. They are sentenced for their offences. If they have got bad records, then nothing can be taken off by way of mitigation, while if they have not got bad records, a great deal can be taken off'. Thomas: Principles of Sentencing, 2ed, p 198 quoting from an unreported decision Bowman, Murphy and Bramwell. Baumer v R (1987-1988) 35 A Crim R 340 was a case where a prisoner with an 'appalling record' was sentenced to a long term of imprisonment for a serious driving offence causing grievous bodily injury. It was there submitted that people with a propensity to continue to commit driving offences must be 'kept away' for the protection of society.
In a joint judgment, Mason CJ, Wilson, Deane, Dawson and Gaudron JJ said at 345:
'We have already referred to his Honour's observation that 'the literally appalling record' of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be 'kept away' for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. In applying a section like s 154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence.'"
At page 5 Rowland J said:
"The object therefore in any sentencing process is to arrive at an appropriate sentence for the particular offence and then consider whether there are mitigating circumstances which would tend to reduce the sentence thus arrived at, for example, a good record, or extenuating circumstances. The effect of a bad criminal record will be that the appropriate sentence for the crime will not be reduced by the mitigating circumstance of a good character. Similarly, the failure of the last penalty to act as a deterrent will clearly offset other mitigating factors."
In Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 Murray J set aside a term of 12 months' imprisonment for an offence of driving without a motor vehicle driver's licence and substituted a sentence of 2 months imprisonment. The appellant had by then served just less than 2 months of his term. The circumstances of the offence had been that at about 7.30 pm the appellant was stopped by police on Albany Highway, Victoria Park because his vehicle had a defective headlight. He was driving at the request of a friend who had called at his house and asked for transport to a nearby pawn shop a short distance from the appellant's home. In that case the learned Magistrate had referred to a decision by Walsh J in Milentis v Chitty, unreported; SCt of WA; Library No 7826; 4 September 1989 Murray J said (at 7-8) that in that case Walsh J had occasion to deal with a similar offence and made the point that offences of the kind were serious. A licence to drive a motor vehicle is in a real sense a privilege. He pointed out that Walsh J had said that those who have the benefit of that privilege are required to undertake their activities with due regard for the law and the general safety and protection of motorists and that those who fail in that regard lose the privilege of being able to drive. He noted that Walsh J had further commented that the law has always regarded the offence of driving whilst under disqualification as being particularly serious, certainly in circumstances in which the offence suggests a wilful defiance of the law. Murray J endorsed those remarks. With respect, I too, would endorse those remarks.

Murray J was unable to discern in the learned Magistrate's sentencing remarks any specific error of principle or fact; nor was there anything to suggest his Worship had sentence the appellant "on his record". Concerning the law as to the affect of previous convictions Murray J said (Fernando, 9):
"The law is that the relevance of previous convictions is to the assessment of the proportionate penalty. It is not to inflate the sentence above that which is proportionate to the gravity of the offence but it may have an impact upon both the seriousness of the offence, as one committed by a recidivist, and upon the impact upon sentence which would otherwise be accorded to mitigating factors. The question always is whether the offence before the court is, as their Honours put it in the High Court (in Veen v R (No 2) (1987-88) 164 CLR 465, 477 per Mason CJ, Brennan, Dawson and Toohey JJ) an uncharacteristic aberration or whether it is a manifestation of a continuing attitude of disobedience to the law increasing, in those circumstances, the need to impose an appropriately deterrent penalty."
In the end the live question in that case came to be whether the sentence imposed was manifestly too severe in all the circumstances. His Honour concluded it could not be said there was any error in the determination that the circumstances called for the imposition of a term of imprisonment, but when he turned to the circumstances relevant to the length of the term Murray J said (at 10‑11):
"The Court will have regard to the purpose of the driving and whether it was associated with the commission of other offences, or whether indeed there may be some mitigatory aspect to that such as the need, short of a defence of extraordinary emergency, of a relatively compelling nature to drive in a situation of extremity. The nature of the driving itself will, I think, be relevant because it may provide a particular illustration of the point that the offender has lost the privilege to drive by reason of the incapacity to obey the traffic laws. The duration of the driving will certainly be relevant. The time when the suspension or disqualification was imposed, how recent it was, what its duration is, will be matters of relevance.
In this case it can be seen from a reference to such matters that the offence was, albeit serious, nonetheless an unremarkable example of the commission of such an offence. There was no particular circumstance of aggravation attendant upon it except the lack of any good reason for the wilful refusal to obey the law which the commission of the offence represented."
In the end his Honour concluded the evidence showed that the appellant's personal circumstances had changed very much for the better since his fourth conviction for a similar offence and that the Magistrate had failed to properly recognise the extent to which it was possible to give the appellant a further chance to continue his rehabilitation. A sentence of 2 - 3 months would have been perfectly adequate and no more than was justifiable in all the circumstances. His Honour accordingly quashed the sentence of 12 months' imprisonment and imposed a sentence of 2 months' imprisonment in lieu.
A sentence of 4 months' imprisonment for a fifth conviction for driving without a licence was upheld by Miller J in Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998. The conviction followed a plea of guilty on one charge of driving whilst being disqualified and one of escaping legal custody. The appellant was detected on Stock Road driving at a speed of 94 km per hour in a 70 km per hour speed zone and when stopped was asked whether he had a current driver's licence. He replied that he did but that he did not have it with him. He gave a false name and said that the motor vehicle belonged to his uncle. The police officers made a radio check as a result of which it was put to the appellant that he had given a false account. The vehicle was searched and a wallet with his true name was located. He was arrested and escorted to the police vehicle. When approaching it he broke away and ran across the road into bushland where he jumped a number of house fences and disappeared. The relevant substantive issue before Miller J was whether the term of imprisonment should have been suspended. His Honour referred to a line of cases in this Court prior to 1997 which recognised that the offence of driving under suspension or whilst disqualified is a very serious offence particularly where it involves a "willed defiance of the law". His Honour referred to the qualification by Doyle CJ in Police v Cadd & Ors (1997) 69 SASR 150 of the remarks of King CJ in Eldridge v Bates (1989) 51 SASR 532 at 533-534 whereby Doyle CJ said that whilst he accepted that the offence of driving whilst disqualified is one that ordinarily warrants imprisonment and that its seriousness may make it difficult to order the term of imprisonment be suspended, and that circumstances justifying suspension are unlikely to be found in routine or "run off the mill" aspects of circumstances of this offence, nonetheless individual consideration must still be given to these matters, and in particular, to the circumstances of the offender. The concluding remarks of Doyle CJ (Cadd at 168) were that:
"For my part, rather than say that a suspended sentence will be exceptional for a person convicted of driving whilst disqualified, I would say that the offence is of a type and tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension will be unusual cases (eg cases of genuine emergency; cases in which the driving is really trivial). However, the circumstances of the offender must also be considered and may nevertheless warrant the giving of a last chance by means of a suspended sentence."
Miller J then referred to R v Liddington (1997) 18 WAR 394 in which Malcolm CJ and Steytler J expressed the view that a suspended sentence under s 39(2) of the Sentencing Act 1995 (WA) is primarily for the purpose of the rehabilitation of the offender, although Steytler J acknowledged that was not the only factor and would not necessarily be the determinative one. His Honour listed (not exhaustively) a number of factors which should be considered and concluded with the observation that the particular factors to be taken into account and their relative importance in any particular case will necessarily vary with the circumstances of each case.
Miller J summarised the effect of these authorities as follows (Krakouer, at 17):
"What was said in Liddington in entirely consistent with the view of the majority of the Full Court of the Supreme Court of South Australia in Cadd (supra) and, in particular, the views of Doyle CJ, to which I have referred. Moreover, the views expressed by the majority in Cadd reflect the consistent line of authority in this Court, to which I earlier referred. That is, the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of genuine emergency' cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and "reasons militating in favour of an exercise of mercy."
He concluded there was nothing exceptional in the appellant's case which would in the application of the principles articulated in those authorities have led to an order suspending imprisonment.
The principles relating both to suspended sentences and to sentencing standards have however been the subject of further appellate consideration since then.
In Dinsdale v The Queen [2000] HCA 54 at [13] Gleeson CJ and Hayne J described the process of determining an appropriate sentence under s 39(2) and (3) of the Sentencing Act 1995 (WA) as relevantly involving a choice first between a suspended sentence of imprisonment and imposing a term of imprisonment which the offender would have to serve immediately. At [15] their Honours said:
"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."
Pertinent to the present context their Honours said (at [19]) that the discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation (see also Gaudron and Gummow JJ at [26] and Kirby J at [84-86]).
In Kovacevic (2000) 111 A Crim R 131 a full bench of five judges in the South Australia Court of Criminal Appeal revisited the question of sentencing standards. I have previously discussed what fell from the Court there in Haywood v Hubbard [2000] WASCA 416 and I do not propose to repeat that here. Briefly stated, Doyle CJ, Mulligan, Bleby and Martin JJ reiterated that whilst a sentencing standard offers a general guide it cannot dictate a result in every case, nor remove the need for consideration of the facts of each case. Their Honours particularly noted that considerations of deterrence cannot displace all other considerations, either at the outset or at the conclusion of the sentencing process. All relevant considerations must be taken into account and given due weight including the interest of the offender and of society in the rehabilitation of the offender and in an appropriate case, those of mercy and leniency.
There has been a series of cases concerned with the sentencing of offenders for offences of driving under suspension or without a valid motor vehicle driver's licence. I have already referred to Fernando v Keady and Krakouer v Durka.
In Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998 the appellant had been sentenced on two counts of driving without a licence and one of driving under the influence of alcohol. The two offences of driving without a licence had occurred in 1997 and 1998 respectively. The first arose out of an incident in which the appellant was involved in a traffic accident with a large truck as a result of which he was also charged with dangerous driving causing death. The second involved a serious traffic accident a year later. On the first offence of driving without a licence he was sentenced to the maximum of 18 months' imprisonment and disqualified for 3 years. On the second he was sentenced to imprisonment for 10 months and disqualified for a further 2 years. The sentences of imprisonment were made cumulative - a total of 28 months - but the learned Magistrate then ordered they be suspended for 18 months. On the appeal Miller J said there was a very live question whether it was appropriate for the sentences of imprisonment to have been suspended at all, referring to Police v Cadd (supra) and Liddington (supra). However, his Honour was not disposed to interfere with that aspect. He allowed the appeals, reducing the term of 18 months' imprisonment to one of 4 months and that of 10 months' imprisonment to one of 6 months.
In Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999 his Honour again had to consider the question of the appropriateness of a suspended sentence. The appellant had been convicted of driving under suspension and driving with a blood alcohol concentration in excess of 0.08 per cent. She had been sentenced to 4 months' imprisonment on the driving under suspension charge. It was her fourth conviction for driving under suspension. On appeal it was argued the sentence should have been suspended. Miller J again referred to what had been said in Liddington and Cadd about suspended sentences and observed that in light of those authorities it was necessary to find something exceptional in the appellant's case to justify suspending the term of imprisonment. He considered he was unable to do so and accordingly dismissed the appeal. His Honour noted in particular that the case could not be categorised as one of either genuine emergency or trivial driving:
"There was absolutely no emergency, but a deliberate decision on the part of the appellant to drive her friend to a nearby bus station and there was nothing trivial about it." (ibid, 10)
The issue of suspending a sentence of imprisonment imposed for a third conviction for driving under suspension arose again in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999. The appellant had been sentenced to 4 months' imprisonment for his third offence of driving under suspension within 15 months.
McKechnie J referred to the earlier authorities and expressed agreement that driving without an appropriate driver's licence especially when disqualified from holding or obtaining one is a "pernicious offence". He said (at 4):
"It is difficult to detect; it has ramifications in terms of insurance and it often evidences a disregard for the normal rules of society necessary when the community is so heavily depended upon motor vehicles."
On the issue of a suspended sentence McKechnie J referred to Liddington, GP, Krakouer v Durka and Calway v Wiebe and concluded (at 7):
"Distilling all the judgments it seems to me that there are no prescriptive rules as to when a sentence may or may not be suspended and that although there is a bias towards rehabilitation or reaffirmation, other factors singly or in combination may, in particular circumstances, render the suspension of a sentence appropriate. In the case of persistent conduct there is more likelihood that the offender will have to demonstrate some special circumstances which would justify the suspension of a sentence of imprisonment."
With respect I agree entirely with that observation: it is consistent with the approach explained by the High Court in Dinsdale.
Returning to the appeal before him, McKechnie J noted that the learned Magistrate had expressly referred to the possibility of a suspended sentence but had taken the view it was predicated essentially on the prospect of rehabilitation. As his Honour pointed out that was a misdirection.
His Honour allowed the appeal and ordered the sentence of 4 months' imprisonment be suspended.
In Dragic v Burrows [2000] WASCA 385 a sentence of 14 months' imprisonment imposed in respect of a third conviction for driving under suspension was quashed and a sentence of 4 months' imprisonment was substituted.
All of these authorities have a bearing both on the actual length of the term of imprisonment in the present case and on the question whether or not it should have been suspended.
In my view the learned Magistrate here erred in his approach to the effect of the appellant's relationship with his de facto wife and her children. Whilst 4 months was not a particularly long time for a relationship the evidence before his Worship was that it was a serious relationship and the appellant's role in it as a support to his partner and the children was genuine, substantial and positive. It should not have been effectively disregarded simply on the basis that it had not at that stage been a long term relationship. Likewise it seems to me his Worship failed to have any regard to the circumstances of the appellant's driving. There was a medical emergency and there was medical evidence of that before his Worship. The disqualification had been imposed in December 1999 and there was no suggestion the appellant had driven until this offence on 27 July 2000. Whilst alcohol was involved he was only 0.007 per cent over the blood alcohol concentration limit of 0.08 per cent and it was not a case of the appellant drinking knowing he was going to drive. The driving itself was of short duration and the appellant was on his way home from the chemist when he was stopped. There was no element of "wilful disregard" of the traffic laws. Contrary to the view of the learned Magistrate there was no particular circumstance of aggravation about it and there were substantial mitigating features. An immediate term of 6 months imprisonment was manifestly excessive in the circumstances and suggests his Worship either had excessive regard to what he saw as aggravating circumstances or had inadequate regard to the mitigating features of the case, or both. His Worship clearly erred in approaching imprisonment as the first option for him to consider (AB11) - that was the reverse of the approach required by the legislation (Dinsdale). A non-custodial order was clearly an option here and should have been considered.
My initial conclusion was that the sentence of 6 months' imprisonment should be set aside and, a sentence of 4 months' imprisonment suspended for 12 months should be substituted therefor. However, when I indicated that at the resumed hearing this morning Mr Tydde pointed out that a suspended sentence was precluded because the appellant was on parole.
Section 76(3) of the Sentencing Act 1995 (WA) stipulates that:
"Suspended imprisonment is not to be imposed if -
(a)the offence was committed when the offender was subject to an early release order (as defined in Part 13); or
(b)the offender is serving or is yet to serve a term of imprisonment that is not suspended."
Part 13 of the Sentencing Act 1995 (WA) comprises s 85 to s 97 inclusive. Section 85 defines "early release order" as meaning a parole order, or home detention order or a work release order made under the Sentence Administration Act 1995 (WA). The effect of these provisions meant that a suspended term of imprisonment could not be imposed upon the appellant.
Mr Tydde then submitted that substantially the same effect could be achieved by the imposition of a substantial fine combined with a Work and Development Order (WDO") under s 57A of the Sentencing Act 1995 (WA). Ms Garnett, who appeared for the respondent today did not dispute the availability of a WDO in principle, but countered with the submission that as I had already determined that a sentence of imprisonment (albeit suspended) should be imposed, that necessarily meant that I had concluded no sentencing option other than imprisonment was appropriate (s 39(3) of the Sentencing Act 1995 (WA)) and so it would be wrong in principle for me now to substitute any lesser option, rather the appellant should have to serve an immediate term of 4 months' imprisonment.
The United Kingdom approach was described by Parker LCJ in O'Keefe [1969] 2 QB 29, 32; (1969) 53 Cr App Rep 91, 94-95 as follows:
"This Court would like to say as emphatically as they can that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make. After all, a suspended sentence is a sentence of imprisonment …
Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then to say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?"
That passage was quoted by Malcolm CJ in GP (supra, at 372), when his Honour also referred to the observation by Green CJ in Percy [1975] Tas SR 62, 72-73 that:
"The purpose of suspending the whole or part of a sentence is primarily rehabilitative. A suspended sentence is the penultimate weapon in the extensive armoury of graduated penalties available to a judge of this Court for the punishment of crime."
and accepted that to be now broadly the position in this State. Of course Malcolm CJ was there concerned with the perceived purpose of a suspended sentence as being primarily rehabilitative, which the High Court in Dinsdale has now said is too narrow a view of the legislation.

I would not understand Parker LCJ in O'Keefe to have meant that a sentencing court must sequentially first decide that imprisonment is appropriate and then determine whether or not it can be suspended. Such an approach would in my view be in conflict with Dinsdale. It seems to me that properly understood Parker LCJ was really describing the same approach as that required by Dinsdale, namely to consider the imposition of a suspended term of imprisonment before considering the imposition of an immediate term.
To return then to Ms Garnett's submission it would follow that a determination that a suspended term of imprisonment would be appropriate and proportionate here necessarily involves a conclusion that an immediate term of imprisonment would be excessive. And so it is necessary to look to an option less severe than immediate imprisonment.
Section 57A of the Sentencing Act 1995 (WA) was inserted by Act No 9 of 2000 and came into operation on 25 August 2000, only six days before the appellant was sentenced by his Worship. That section provides that:
"(1)In this section and section 57B words and expressions have the same definitions as in the Fines, Penalties and Infringement Notices Enforcement Act 1994.
(2)This section applies if -
(a)a court fines an offender and does not also impose a term of imprisonment; and
(b)the offender at the time is not in custody serving a sentence of imprisonment.
(3)The court, in addition to imposing the fine, may make a fine enforcement (WDO) order.
(4)A fine enforcement (WDO) order is an order requiring the offender, within 7 days after the order is made -
(a)to pay the fine in full; or
(b)to report to a community corrections centre to be served with a work and development order ("WDO") in respect of the fine.
(5)The court must not make a fine enforcement (WDO) order unless -
(a)the offender is personally present in court;
(b)the court is satisfied by evidence on oath from the offender that the offender -
(i)does not have the means to pay the fine, either within 28 days or pursuant to a time to pay order;
(ii)is not the holder of a vehicle licence;
(iii)does not have any personal property that could be seized under a warrant of execution issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994 to satisfy, wholly or partly, the fine;
(iv)will be unlikely to have the means to pay, or personal property that could be so seized, within a reasonable time after the fine is imposed; and
(v)is mentally and physically capable of performing the requirements of a WDO;
(c)the court is satisfied by evidence on oath from the offender that the offender -
(i)is the holder of a driver's licence but is disqualified from holding or obtaining such a licence; or
(ii)is not the holder of driver's licence;
and
(d)the court is satisfied that the issue of a licence suspension order under the Fines, Penalties and Infringement Notices Enforcement Act 1994 would be unlikely to result in the fine being paid within a reasonable time after the fine is imposed.
(6)A fine enforcement (WDO) order must be served on the offender personally.
(7)A fine enforcement (WDO) order may only be made during the sentencing proceedings and not afterwards.
(8)Sections 48 to 53 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 apply to an in respect of a WDO served pursuant to a fine enforcement (WDO) order."
If an offender fails to comply with a WDO a warrant of commitment may be issued for a term equivalent to either a number of days calculated according to the amount of the fine outstanding or a period equal to the maximum sentence prescribed for the particular offence whichever be the less (see s 53 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
From these provisions it can be seen that there is a similarity between a WDO and a suspended sentence in that in either case if there is a breach the offender faces a term of immediate imprisonment. On the other hand, a WDO may ordinarily be more onerous in practice than a suspended sentence because the offender will have to comply with work etc, requirements as directed.
In the circumstances it seemed to me appropriate to accede to Mr Tydde's submission that in principle a WDO was an appropriate option here. I have therefore heard evidence from the appellant and am satisfied that the criteria in s 57A(5) of the Sentencing Act 1995 (WA) have been met.
I would allow the appeal, set aside the sentence of 6 months' imprisonment and substitute therefore a fine of $4,000 in respect of which a Work and Development Order is made. The licence disqualification order made by the learned Magistrate will stand.