Head v Palmer - [2013] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HEAD -v- PALMER [2013] WASC 213

CORAM: McKECHNIE J

HEARD: 20 MAY 2013

DELIVERED : 30 MAY 2013

FILE NO/S: SJA 1145 of 2012

BETWEEN: PETER HEAD
Appellant
AND
BRETT MORGAN PALMER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 38937 of 2012, PE 38938 of 2012, PE 38939 of 2012, PE 38940 of 2012

Catchwords:

Courts and judges - Whether magistrate predetermined the accused's culpability before all evidence adduced - Whether fair trial

Road traffic - Second conviction driving under suspension - Whether suspended sentence manifestly excessive - Usual range of penalties - Whether facts take matter outside range

Legislation:

Road Traffic Act 1974 (WA)

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D E Leigh

Solicitors:

Appellant: Dean R Love
Respondent: State Solicitor for Western Australia

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

Anderson v Little [2009] WASC 143
Chinnery v Hansen [2006] WASCA 349
Griekspoor v Scott [2000] WASCA 419
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kearney v Rinaudo [2007] WASC 104
Logan v Kuser [2008] WASC 65
Mears v Holleman [2010] WASC 39
Michael v The State of Western Australia [2007] WASCA 100
Rossiter v Francisty [2005] WASC 270
Spack v Godfrey [2009] WASC 262
Style v Rudrum [2012] WASC 385
The State of Western Australia v Mitchell [2008] WASC 114
Vince v Martyn [2013] WASC 60

McKECHNIE J:

Why this matter comes to court

Around 6.00 pm on Sunday, 5 August 2012, Mr Head was having a few drinks and playing music rather loudly in his apartment in Bishops Row, East Perth. So the police were called and asked him to turn it down. He agreed. They left to write up the job in their vehicle.
Mr Head decided he would drive around to see a friend. This was possibly not the brightest decision he had ever made because:
•he had been drinking;
•he had lost his licence four weeks before; and
•the police were still there.
He left the apartment block at speed with wheels spinning (according to police); driving very cautiously (according to Mr Head).
He drove through a stop sign and two red lights at speed (according to police); drove very conscientiously at the speed limit, stopping at the sign and lights (according to Mr Head). The police pursued with lights flashing and sirens wailing (according to police); or with sirens only in Wellington Street (according to Mr Head).
At all events matters ended in Bennett Street and Mr Head found himself facing four serious traffic charges. He pleaded guilty to two of them and went to trial on the charges of reckless driving and failing to stop when called upon. He was convicted, the magistrate calling him an unmitigated liar.
Mr Head, whom I shall now call the appellant, appeals on the basis that he did not get a fair trial and that a suspended sentence of 6 months and 1 day is excessive for driving under suspension.
On 13 November 2012, the appellant pleaded guilty to one charge of driving with a blood alcohol reading in excess of 0.08% (PE 38938/12). He was fined $2,000 and disqualified from driving for 18 months. He pleaded guilty to one charge of driving while legally disentitled (PE 38940/12). He was sentenced to 6 months 1 day's imprisonment suspended for 9 months and a 9 month licence suspension cumulative. He appeals against this sentence. He does not appeal against the amount of fines for the other charges or the orders for further licence suspension.

The appeal against conviction

The appellant pleaded not guilty to one charge of reckless driving (PE 38937/12) and one charge of failing to stop when called upon (PE 38939/12) but was convicted after trial. On the charge of reckless driving he was fined $1,700 and he was disqualified from driving for 6 months concurrent. On the charge of failing to stop he was fined $300. He appeals against his conviction for both charges on the grounds:
The appellant did not receive a fair hearing as Her Honour expressly and/or impliedly pre-determined his culpability before all evidence had been adduced;
Particulars:
1.1With regard to either the playing of a police audio transmission or the appellant testifying in his defence, Her Honour commented 'I would have thought that it's a waste of time really, but it's up to you, but I can't see what point it's going to in your defence' (ts 33C);
1.2Concerning the playing of an audio recording of the police chase, SM Lane remarked '... I really don't think it's going to go anywhere in terms of my findings' (ts 35B);
1.3In relation to whether the prosecution needed to call the second police officer to testify, Her Honour told the prosecutor, 'You don't need to call the second witness if you don't want to but that's up to you' (ts 42E);
1.4Regarding the relevance to the defence case of the distances involved in the police chase and what the officers observed, Her Honour noted to defence counsel that the issue '... took a considerable amount of time, which is quite wasteful', asking defence counsel why he was '... wasting time deliberately?' (ts 49A);
1.5At the close of the evidence SM Lane stated to the prosecutor 'Sergeant, would you like to sum up very briefly' (ts 62E).

The proceedings before the magistrate

The prosecution case in opening was that:
Our case is going to be they've gone to a noisy party, they've spoken with the accused, they've gone to type up the job and left. As they were waiting outside, just typing up the job on the computer, they've heard screeching tyres, they've seen the accused's vehicle come out at speed. They've hit the emergency lights and sirens. They followed him around East Perth. They're going to give evidence that he's gone through some red lights, gone through a stop sign. Our case is going to be that the manner of driving they observed in total builds up to reckless and also that he was aware that they were there and he failed to stop (ts 2).
Defence counsel agreed the case was about a factual issue as to the quality of the driving (which the magistrate described as 'straightforward').
The trial commenced at noon (12.02 pm). Counsel indicated the case would take about two hours. The trial and sentencing proceedings did not finish until 5.09 pm. The lunch adjournment commenced at 12.47 pm and proceedings resumed at 2.19 pm. There was a 20 minute break due to defective recording equipment so the matter took considerably longer than the time indicated.
In overview, the prosecution evidence was that the appellant had sped away from the two police officers, gone through red lights (two sets) and a stop sign. The police car gave chase with lights and sirens activated.
The appellant's evidence was that he did not see or hear the police vehicle until he was in Wellington Street when he immediately pulled over. He did not drive through red lights or a stop sign. He drove cautiously without breaching road traffic rules.
The first witness for the prosecution, Constable Palmer, gave evidence in support of the opening. In cross‑examination the witness said that he had made three statements. He had read Constable Schmechtig's statement but denied that as a result of reading it he changed his statement. The changes were made as a result of his sergeant's advice, including the correction of spelling mistakes.
In cross‑examination, he was taken to photographs which had been tendered. Counsel put the various distances travelled to the witness. This occupied considerable time in the hearing.
One issue was whether the police had lights and sirens on at the time of pursuing the appellant. Constable Palmer gave evidence (ts 6) that lights and sirens were on. The chase took a short amount of time, about two minutes.
When the police set off in pursuit with lights and sirens, Constable Palmer did not announce immediately on the police radio because he thought the appellant was going to stop. He made a radio transmission before the police vehicle went through the stop sign at Goodrich Street and Victoria Square. The substance of the radio transmission was adduced in cross‑examination and later an audio recording was played.
Constable Schmechtig gave evidence corroborating that of Constable Palmer.
The appellant gave evidence that the police had come around to his apartment for a noise complaint. He had been drinking:
[I] wasn't really thinking at the time and I just wanted to get out of the apartment and go to a friend's house. So I just grabbed my keys as soon as they'd left, proceeded down to my car, jumped in my car and opened the gates to my apartment block. As I was pulling out I saw the two officers there getting into their van and immediately thought what a silly thing I'd done ...
...
I just obviously thought it was silly of me to have rushed down to my car, jumped in and driven out, so I proceeded from that point very cautiously driving, you know (ts 55).
The appellant maintained that he drove cautiously and when turning left into Hill Street did not notice any lights or sirens. He was not exceeding the speed limit. He was expecting them to come up behind. Their lights still were not on and he decided:
[So] I turned into Wellington Street, not against any traffic signals. ... The very first opportunity to pull over was when I had reached the lights at Bennett Street, at which point I turned right and pulled over immediately to the left.
...
[I] wasn't breaching any traffic laws (ts 57).

The appeal

The principles are not in contention. They are outlined in Michael v The State of Western Australia [2007] WASCA 100:
When the contention is one of an unfair trial, the test to be applied, according to Kirby A‑CJ and Meagher JA (who agreed with Kirby A‑CJ), is whether the impugned behaviour has 'created a real danger that the trial was unfair': Galea at 281. If so, the judgment must be set aside: Galea at 281; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146. In R v Mawson [1967] VR 205, in which there had been excessive involvement or interference by the trial judge in the conduct of the case, the Court (Winneke CJ, Adam and Barber JJ) regarded the test as being whether there had been 'such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice'. The Court recognised that, in those circumstances, a miscarriage may result for any of a number of reasons, some of which they identified (at 207). That passage was quoted by Crockett and Teague JJ in Boykovski (1991) 58 A Crim R 436 at 444; by Crockett, Southwell and O'Bryan JJ in Cunningham (1992) 61 A Crim R 412 at 422 and by Ipp AJA (as he then was) in Thompson (Sully and Bell JJ agreed with Ipp AJA). In Thompson (at [36]) Ipp AJA, relying upon Mawson, also accepted that a departure from the due and orderly processes of a fair trial may amount to a miscarriage of justice or may infringe the principle that criminal justice must not only be done but must also appear to be done [63].
With these principles in mind, I approach the particular passages which the appellant asserts evidences express or implied predetermination by the magistrate so that a reasonable observer would conclude that the magistrate was biased and as a result, the appellant's trial was unfair.

Particulars 1.1 and 1.2: First and second impugned passages

These can be dealt with together.
Counsel referred to a radio transmission. It appears Constable Palmer was in radio communication with headquarters. This communication was recorded. Counsel said, 'It may assist the court to hear it?'. There was a short interchange about whether it could be played on the court system, then the magistrate said, 'Yes, sometimes we have trouble with these. Is there any special purpose why you're having this played?'. At this point in the proceedings counsel had already led evidence of the substance of the radio transmission [22] ‑ [23] and again [26].

First impugned passage

LOVE, MR: Well, I'm conscious of what you've said about I can't question the witness about what he thinks my client might have thought.
HER HONOUR: Whatever is in the mind of your client; that's right.
LOVE, MR: Commenting on this might be something I'd best do in submissions at the end.
HER HONOUR: You've taken a long time to get to this point and we've only started - this is the first witness and there's two witnesses and then perhaps your client, if he wants to give evidence. He doesn't have to. I would have thought that it's a waste of time really, but it's up to you, but I can't see what point it's going to in your defence [emphasis added].
LOVE, MR: Well, I guess what I've been focusing on is when the reported instance of my client driving down Wellington Street - when that's been said over the radio it's been said in the past tense.
HER HONOUR: It's a grammatical matter, not an evidential matter.
LOVE, MR: It's a point in time and relevant to when my client became aware of when he had to pull over.
HER HONOUR: Well, that will be for me to decide but - - -
LOVE, MR: Absolutely.
HER HONOUR: We'll see whether we can get it played anyway at least, so we can listen to it (ts 33).

Second impugned passage

HER HONOUR: Well, you haven't put it to this officer yet and of course the rule in Browne v Dunn requires you to do so. The charges themselves are not tied. One is failing to stop and one is the manner of driving. They don't follow another but they're just a sequence of events that occurred. Also, the fact that he had a blood alcohol reading of .130, of course, as you're well aware, he doesn't have to say, 'You know, I was too drunk to know where and how I was driving', because it's not a defence. He's already pleaded to the - and the fact that he was driving under suspension may give him a reason to get away from the police. So those matters really should have been taken into account when you're putting it to this officer because he doesn't know what's in your client's mind when he's driving. Have we got it going now? No. How else can it be played? You don't have a laptop with you either.
PROSECUTOR: I don't. I do apologise, your Honour. I wasn't planning on leading - - -
HER HONOUR: We can call someone to try to get it played. Do you want to do that?
LOVE, MR: If that's possible.
HER HONOUR: I don't know.
LOVE, MR: If it's inconvenient to the court, perhaps we should come back on a different day.
HER HONOUR: No, I don't think it's inconvenient at all. It's just getting somebody up here to do it quickly. I don't know how quick we can do it and I really don't think it's going to go anywhere in terms of my findings. Perhaps if you want to keep cross-examining the officer, we can come back to it if we can get someone to come up.
LOVE, MR: Thank you (ts 34 - 35).

The appellant's submission is that:
3.In regards to the appellant giving evidence Her Honour said 'I would have thought it's a waste of time really, but it's up to you, but I can't see what point it's going to in your defence' (ts 33).
However, a reading of the first impugned passage in context shows that the magistrate was referring to playing the audio transmission, not the appellant giving evidence. Her reference to the appellant's evidence was simply a reference to the time that the trial may yet take.
The second impugned passage does not display bias or prejudgment.
Before reaching that passage counsel was putting a proposition to the witness that he could not have got from Lord Street to the end of Wellington Street in the time it took for us to hear that recording to which the witness responded, 'I don't know'.
The police did not assert that the radio transmission commenced at the beginning of the chase. Constable Palmer said he radioed K1 when in Lord Street and could see the appellant at the bottom of the hill turning into Wellington Street. The magistrate had the substance of the recording to make findings. The issue was whether the police had lost sight of the appellant (and he of them) for a sufficient period to account for the fact that the appellant may not have seen them and therefore did not knowingly fail to stop.
The magistrate was only referring to actually listening to the audio recording. Her comment whether viewed alone, in combination with particular 1.1, or all the particulars, would not have caused a fair‑minded observer to conclude that she had predetermined the issue.

Particular 1.3: Third impugned passage

HER HONOUR: Thank you very much. You're excused from giving any further evidence today. Thank you for coming to court?---Thank you.
[THE WITNESS WITHDREW]
PROSECUTOR: Your Honour, at this point I'm a little doubtful we're going to finish today.
HER HONOUR: You don't need to call the second witness if you don't want to but that's up to you. I don't know what Mr Love is intending to do in terms of his client.
LOVE, MR: I was going to call Mr Head.
HER HONOUR: I think he should be. That would be quite good. What do you want to do in relation to your next witness, because it has taken an inordinate period of time to do this.
PROSECUTOR: I'm considering the cross-examination. My friend is well entitled to cross-examine him. I'm thinking I'd rather start and finish on the same day, for the witness.
HER HONOUR: You should be able to get you next witness in. I'm sure that counsel won't be as long as he was with the first witness because he knows exactly where to go in terms of cross-examination.
PROSECUTION: Yes, your Honour. Well, I'll call my next witness then. The prosecution calls Matthew Schmechtig (42 ‑ 43).

The comment by the magistrate was principally a comment about time. The second witness was understood by everybody to be a corroborative witness. Counsel had cross‑examined Constable Palmer about reading Constable Schmechtig's statement.
Constable Palmer was challenged as to the appellant's version of events which was put to him for comment.
Constable Schmechtig's evidence was unlikely to add substantially to the store of information about the event and the magistrate's comment was nothing more than a realistic appraisal. It does not, by itself, or in combination with other statements, indicate predetermination.

Particular 1.4: Fourth impugned passage

HER HONOUR: Do we have to go through that again? This witness can't - and in fact they can't be tendered actually, but I think you can quite properly put to him the distances that you've obtained through the search. I don't think there's any dispute about that. It's just that it took a considerable amount of time, which was quite wasteful.
LOVE, MR: Given that the documents, as you say, can't go into evidence, I really feel that I have to elicit the evidence orally.
HER HONOUR: Why are you wasting time deliberately?
LOVE, MR: I'm trying to give my client a fair hearing if I can.
HER HONOUR: I know that you have to put your client's case but this can't be his case - the distances. Surely you can put to the officer, 'Investigation on the Internet has shown that this is this distance. What do you say about that?'
LOVE, MR: I'll try to proceed along a manner that is satisfactory to your Honour.
HER HONOUR: It's just that I don't think there's any dispute, because nobody has gone out and measured it, and the other officer didn't dispute the distances that you obtained from the Internet search, so I can't see that it's contentious. Are you to objecting, sergeant, on that basis?
PROSECUTOR: As your Honour has put, I don't think there's anything really that's - I don't have an issue with the distances that are proposed being put to the witness.
HER HONOUR: I've made a note of them and I'm sure that you have too.
LOVE, MR: Okay (ts 49).

There was no reason to suggest that counsel was deliberately wasting time and the comment should not have been made.

That said, the comment was directed at counsel, not the appellant, and related to the fact that the distances that vehicles had travelled in the various streets was in evidence and not in dispute.
If the comments indicate any state of mind it is one of impatience, not predetermination.
There is nothing in particular 1.4.

Particular 1.5: Fifth impugned passage

HER HONOUR: Are there any further witnesses?
LOVE, MR: No further witnesses. That's the case now.
HER HONOUR: Sergeant, would you like to sum up very briefly.
PROSECUTOR: I'll be very brief, your Honour (ts 62).

The prosecutor was brief as was defence counsel. This indicated that the matters in issue were of small compass and there were essentially only two matters to decide.
At this point in the trial, the evidence had all been heard. The magistrate was entitled to have evaluated the evidence for herself. She was obliged to give each party the opportunity to make submissions, both for reasons of procedural fairness, and in case there was a point overlooked or not properly appreciated.
There is nothing wrong with this. Magistrates are encouraged to deliver decisions as soon as possible after a hearing. As a consequence, evaluation cannot be left until the last word is spoken. It is a dynamic process. Some judicial officers are patient; others less so. The magistrate's evaluation that the case did not require lengthy exegesis was correct. A reasonable observer who had sat through the trial would not regard the comment as predetermination, either by itself or in combination with the other particulars. It may or may not indicate impatience, nothing more. The impugned matter does not suggest that the magistrate had closed her mind to the possibility of persuasion that tentative views might be altered.
As the High Court remarked in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case' (see also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them [13].
The hypothetical observer is not entitled to make snap judgments any more than the judicial officer. There is an important difference between impatience and bias or predetermination: Michael [72].
The comment indicated no more than that she did not require much assistance from the prosecution. The issues were in short compass and required little elucidation. The magistrate listened to counsel for the appellant who was also very brief.

Conclusion

The particulars to the ground of appeal, singularly or in combination, do not support a conclusion of apparent predetermination by the magistrate, express or implied.
Leave to appeal is granted. The appeal against conviction is dismissed.

Appeal against sentence

The sentence of suspended imprisonment imposed for the offence of driving a motor vehicle whilst the appellant's motor driver's licence was suspended (PE 38940/12) was manifestly excessive;
Particulars:
1.1The appellant's antecedents;
1.2The circumstances of the offence;
1.3The sentences imposed in, broadly, comparable cases;
1.4The plea of guilty.

The only penalty under appeal is the penalty in relation to driving under suspension (PE 38940/12) to which the appellant had pleaded guilty. The plea deserved some credit even though it was inevitable. After counsel said that the appellant had a capacity to pay a fine, the magistrate said that the offence is very serious:
In fact, at this point in time I'm considering remanding him in custody to get a report because this is such a wilful act. It's only a month after being disqualified by the court - 5 July and we're into August, in fact 5 August, so it's four weeks later. He's driving under suspension, he's drink‑driving again, and the reading is .130. ...
In relation to the driving under suspension, he's only suspended for four weeks and he's back on the road, drink-driving in such a dangerous manner. Surely the court should be looking at a deterrent aspect of this. The only deterrent aspect that I can think of is a prison term and in relation to that there must be both general deterrence and personal deterrence. So general for everybody in the public - it's not in public here but for anybody else - and personal for him to say, 'What will stop you driving?' And I know what will stop him driving: a rather lengthy prison term. So why did you say a fine would be appropriate?
...
There is no real mitigating factors in relation to your client because I found him not to be entirely truthful; in fact being entirely untruthful. So what mitigating factors are there?
...
Mr Love, I must say I accept that there can be a suspended term of imprisonment rather than an immediate term, and fines for the ones where I have to fine, because then your client is on notice that if he does anything wrong there's a high likelihood that he will be imprisoned. This is really serious. We all know only too unhappily about people who are pursued by the police, and it may be in a faster manner and high-speed chases, who get killed. Your client is very lucky that he stopped when he did (ts 73 ‑ 76).

Comparative cases

The appellant relies on sentences for broadly comparable cases that have been the subject of appeal.
In Style v Rudrum [2012] WASC 385, the appellant pleaded guilty to driving an unlicensed vehicle and driving while suspended. He received a fine in respect of the first charge and was sentenced to 9 months imprisonment for the second. He was also disqualified from driving for 15 months cumulative for the second charge. He was 20 years old at the time of offending. He had five previous convictions of driving without a valid licence. He successfully appealed against his sentence and was resentenced to a community based order of 6 months with a supervision requirement and a community service requirement of 10 hours. The 15 month disqualification was also set aside and the appellant was disqualified from driving for 10 months cumulative on existing disqualification orders.
In Spack v Godfrey [2009] WASC 262, the appellant pleaded guilty to two counts of driving while suspended and two other matters for which he received fines. He was sentenced to 12 months' imprisonment for each count of the driving offences to be suspended for 2 years and to run concurrently. The appellant had a relevant criminal record of traffic violations often accompanied by providing false information to police. He appealed against his sentence. The appeal was allowed, the term of imprisonment was set aside and an ISO was imposed for a period of 8 months with a programme requirement.
In Anderson v Little [2009] WASC 143, the appellant was convicted of driving whilst disentitled and driving under the influence of alcohol. He was sentenced to 12 months imprisonment for each offence to be served concurrently. The appellant was 50 years old at the time of sentencing and had three prior convictions of driving while disentitled and multiple convictions of driving under the influence. He had previously been imprisoned for driving offences. The appellant successfully appealed and was resentenced to a total a total of 8 months' immediate imprisonment, being one month for driving while disentitled and 7 months for driving under the influence.
In Mears v Holleman [2010] WASC 39, the appellant was convicted of two repeat offences of driving under suspension, the second offence having occurred while the appellant was serving a suspended sentence of imprisonment for the first offence. The appellant had previously been convicted several times of driving whilst under suspension. He also had a long record of minor offences resulting in fines, licence disqualifications and a sentence of imprisonment while he was a juvenile. The appellant was aged 25 at the time of sentencing. He was sentenced to 12 months' imprisonment suspended for 12 months for the first charge and 12 months' immediate imprisonment for the second charge. He successfully appealed against both of those sentences. He was resentenced to 9 months' immediate imprisonment less 16 days in respect of the second charge and 8 months' immediate imprisonment for breaching the suspended term of imprisonment while committing the second offence. Both sentences were ordered to be concurrent. In respect of the term of licence disqualification, no variation was ordered.
In Kearney v Rinaudo [2007] WASC 104, the appellant pleaded guilty to two charges of driving without a valid licence and whilst legally disentitled to hold a licence, on two separate occasions. He was sentenced to 12 months' imprisonment for each charge to be served cumulatively. He was also disqualified from driving for a total of 24 months. The appellant had a prior record of similar offences. He successfully appealed against his sentence and was resentenced to a total of 16 months' imprisonment.
In Griekspoor v Scott [2000] WASCA 419, Roberts‑Smith J carried out a detailed review of sentences imposed in respect of the offence of driving without a licence while under suspension. He quoted an earlier summary of authorities by Miller J in Krakoaer v Durka (Unreported; WASC, Library No 980595, 14 October 1998) where his Honour noted that:
[T]he 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.
Comments to a similar effect were made by Hasluck J in Chinnery v Hansen [2006] WASCA 349 [25].
In Rossiter v Francisty [2005] WASC 270, I relied upon a table prepared by counsel in respect of the offence of driving whilst disqualified. The table revealed that in most cases the offence attracted sentences of 2 ‑ 6 months' imprisonment for persistent offending.
In Vince v Martyn [2013] WASC 60, Hall J noted that 'sentences of between 4 and 9 months' imprisonment have been imposed for convictions for driving while under suspension for the fourth to eighth such offences'.
In Logan v Kuser [2008] WASC 65, Johnson J considered an appeal against a sentence of 5 months' immediate imprisonment imposed on the appellant for a second conviction of driving without a licence while under suspension. The offence was committed in circumstances where the appellant was also convicted of driving under the influence of alcohol, and where he had been convicted on two previous occasions for that latter offence. Her Honour determined the 4 month sentence of imprisonment in respect of the offence of driving without a licence while under suspension was appropriate, but suspended that sentence.
In The State of Western Australia v Mitchell [2008] WASC 114, an offender with only a single previous conviction for a drink driving offence was sentenced to an immediate 6 month term of imprisonment for driving while under licence suspension. Again, the circumstances in that case were unusual; the charge of driving without a licence while under suspension was one of a series of charges (including manslaughter) arising out of a vehicle collision.
The sentences to which I have referred suggest that it is unusual for a sentence of imprisonment, albeit suspended, to be imposed for a first offence of driving under suspension.
The sentencing process was complicated because the magistrate had to impose penalties for a number of offences which affected the quality of driving.
There was a lurking danger that the appellant might be punished twice for the same conduct.
The magistrate imposed heavy (and appropriate) fines for drink driving, reckless driving and failing to stop when called on.
The principal aggravating circumstance of the offence of driving under suspension was the fact that it occurred within weeks of the suspension being imposed. By driving so soon thereafter, especially in the presence of police, the appellant displayed a flagrant disregard to his legal impediment to drive.
This deserved a penalty somewhat higher than the minimum fine. However, I conclude that the imposition of a sentence of imprisonment, even though suspended was an error. There is nothing in the facts to take it out of the usual range of penalties imposed for similar offending. I allow the appeal and set aside the sentence of imprisonment.

Resentencing

At the hearing it was agreed that if I reached this conclusion I should resentence the appellant.
The appellant and respondent were given leave to file submissions which would be kept sealed until I concluded that I should resentence.
I have now read the submissions.

Prior offending

During the sentencing proceedings the following occurred:
LOVE, MR: He doesn't have a significant record to speak of.
HER HONOUR: Yes, that's good. Does he have a record in Victoria.
LOVE, MR: Not that I'm aware of.
HER HONOUR: Yes? No?
HEAD, MR: Driving related, no.
HER HONOUR: Anything.
HEAD, MR: Yes ago, a marijuana possession charge when I was a kid, but not for a long time. Honestly I've been - - -
HER HONOUR: That's fine. (ts 75)
Contrary to the appellant's statement, he has 11 convictions in Victoria, all of which occurred while he was an adult including:
•1 offence possession of amphetamine;
•2 offences possession of cannabis;
•1 offence use cannabis;
•1 offence possess drug of dependence;
•2 offences possess prohibited weapon without excuse;
•1 offence carry prohibited weapon without excuse;
•1 offence possess controlled weapon without excuse.
The convictions for the drug offences were imposed on 7 July 2010. The convictions for three of the weapons offences were on 6 June 2006 with further weapon offences on 2 September 2004 and 3 June 2003. There are also convictions for possession of use of cannabis on 2 September 2004 and possession of cannabis on the same day.
The appellant has a minor traffic record including driving in excess of the speed limit, conviction of which was recorded on 2 September 2004 as was a conviction for unlicensed driving on the same date.
Although the record of convictions is not principally for traffic offences, it manifests a certain lawlessness and unwillingness to change behaviour.
That unwillingness is emphasised in the present case when the appellant made a conscious decision to drive under suspension, having lost his licence only four weeks earlier and immediately following a visit from police.
The appellant has returned to Victoria and regained his family support. He suffered a particular tragedy in December 2010.
This does not explain his drug convictions which occurred earlier in the year but does give context to his behaviour on the occasion of these offences.
He has been employed for most of the period since he left college. He now appears to be actively addressing his substance issues.
The respondent does not submit that the prior conviction exposes the appellant to a penalty pursuant to the Road Traffic Act s 49(1)(c)(ii).
The applicable penalty for a first offence is a fine of not less than 8 penalty units and no more than 40 penalty units and imprisonment for not more than 12 months.
Having regard to the appellant's inability to modify his unlawful behaviour, particularly in relation to the privilege of driving, it is necessary to impose a penalty of sufficient strictness to bring home to him the consequences of his action.
Notwithstanding the flagrant nature of his offending, having regard to the fact that this was a first offence, I do not consider imprisonment to be the only appropriate sentence. Therefore suspension of sentence does not arise.
The plea in mitigation before the magistrate said that the appellant was working and had capacity to pay a fine. He is, I am informed, presently unemployed but seeking work. I consider a fine is the appropriate penalty. I have regard to the fines already imposed. The appellant will be fined $800.

Orders

1.Leave to appeal against conviction is granted, the appeal against conviction is dismissed.
2.The appeal against sentence is allowed; a sentence of 6 months and 1 day's imprisonment suspended for 9 months is set aside, in lieu a fine of $800 imposed.