Horrocks v Discombe
[2019] WASC 425
•21 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HORROCKS -v- DISCOMBE [2019] WASC 425
CORAM: CORBOY J
HEARD: 23 SEPTEMBER 2019
DELIVERED : 1 OCTOBER 2019
PUBLISHED : 21 NOVEMBER 2019
FILE NO/S: SJA 1103 of 2019
BETWEEN: PAUL HORROCKS
Appellant
AND
SEAN DISCOMBE
First Respondent
DANIEL COOK
Second Respondent
DANIEL JAMES ERIK JAMIESON
Third Respondent
ON APPEAL FROM:
For File No: SJA 1103 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ATKINS
File Number : RO 7683 of 2017, RO 7746 of 2017, RO 2309 of 2019
Catchwords:
Criminal law – Single judge appeal – Whether sentencing magistrate imposed manifestly excessive sentence – Whether sentence infringed totality principle
Legislation:
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Result:
Leave to extend time within which to appeal granted
Leave to appeal on ground 2 granted
Appeal on ground 2 allowed
Sentence varied
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| First Respondent | : | Ms K C Cook |
| Second Respondent | : | Ms K C Cook |
| Third Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
| Third Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abeyakoon v Brown [2011] WASCA 63, (2011) 211 A Crim R 338
Closter v Humphreys [2012] WASC 145
Dinsdale v The Queen [2000] HCA 54, 202 CLR 321
Gable v Nardini [2010] WASC 321
Giglia v The State of Western Australia [2010] WASCA 9
Lowndes v The Queen [1999] HCA 299, (1999) 195 CLR 665
McKenzie v The State of Western Australia [2015] WASCA 163
Miller v Byrne [2016] WASC 236
Neves v Rogers [2013] WASC 440
R v Holder [1983] 3 NSWLR 245
The State of Western Australia v Roffey [2007] WASCA 246
Wallam v Dent [2008] WASC 170
Wilson v The State of Western Australia [2010] WASCA 82
CORBOY J:
(These reasons were delivered orally on 1 October 2019 and have been edited from the transcript.)
The appeal
The appellant appeals from a sentence of 16 months' imprisonment to be immediately served. The sentence was imposed in the Rockingham Magistrates Court on 10 June 2019.
The relevant circumstances are as follows:
(1)On 27 November 2017, the appellant pleaded guilty to two charges:
(a)on 9 October 2017 at Warnbro, he unlawfully assaulted Lisa Melling and thereby did her bodily harm (RO 7683/2017: the Assault Offence); and
(b)on 10 October 2017 at Warnbro, he failed to comply with the requirement of a bail undertaking entered into on 9 October 2017 (RO 7746/2017: the Breach of Bail Offence).
(2)On 18 December 2017, the appellant was sentenced to a community based order for 12 months in respect of those offences (the CBO).
(3)On 21 November 2018, the appellant was convicted of, and sentenced for, a breach of the CBO. He was fined for the breach and the term of the CBO was extended by 4 months.
(4)On 23 November 2018, the appellant was convicted of driving with a blood alcohol content in excess of 0.08 g/100 mL of blood. He was fined and disqualified from holding a motor vehicle driver's licence for 10 months.
(5)On 8 February 2019, the appellant was convicted of driving under suspension. The CBO was cancelled, and the appellant was sentenced for the offences in respect of which the order had been made. He was sentenced to 8 months' imprisonment for the Assault Offence and 5 months' imprisonment for the Breach of Bail Offence. The terms of imprisonment were suspended for a period of 12 months (the SIO).
(6)On 23 April 2019, the appellant pleaded guilty to a charge that on 28 March 2019 at Warnbro he drove a vehicle while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 and while his authority to drive was suspended (RO 2309/2019: the Driving Offence). He also pleaded guilty to a charge of driving with a blood alcohol content in excess of 0.08 g/100 mL of blood.
(7)On 10 June 2019, the SIO was cancelled for breach (the breach being the Driving Offence). The appellant was sentenced to the following terms of imprisonment to be immediately served:
(a)8 months' imprisonment for the Assault Offence;
(b)4 months' imprisonment for the Breach of Bail Offence; and
(c)4 months' imprisonment for the Driving Offence.
The appellant was also fined for the excess blood alcohol content offence and a further period of licence disqualification was imposed.
The appellant did not commence his appeal until 14 August 2019 and, accordingly, he requires leave to extend the time within which to appeal. His application for leave was supported by an affidavit made by Ms Natalie Sinton, a lawyer employed by Legal Aid WA. Ms Sinton explained the steps taken to advise the appellant on the possibility of an appeal and to obtain his instructions. Leave to extend the time within which to appeal will be granted, having regard to when the appeal was commenced, the explanation for the short delay provided by Ms Sinton and the merits of the appeal.
The grounds of appeal
The appeal notice pleads two grounds of appeal:
(1)The sentencing magistrate erred in sentencing the appellant to a sentence for the Driving Offence that was manifestly excessive in all the circumstances.
(2)The magistrate erred in ordering the sentence imposed for the Driving Offence be served cumulatively with the result that the total sentence imposed infringed the totality principle.
The facts - the Driving Offence
The facts alleged by the prosecutor and accepted by the appellant in respect of the Driving Offence were that at 3.00 pm on 28 March 2019, the appellant rode a motorcycle on Safety Bay Road in Warnbro. His partner was a passenger on the pillion seat of the motorcycle. He was observed by police to lose his balance when the bike stopped at an intersection. He and his passenger fell as a result.
The appellant was apprehended by police and a breath test conducted. The appellant returned a reading of 0.137, calculated to 0.115 g of alcohol at the time of the occurrence.
It was submitted on behalf of the appellant for the purpose of the sentencing hearing on 10 June 2019 that:
(1)the appellant had been at home drinking when he received a telephone call from his brother telling him his mother had been admitted to intensive care. He was upset by the news and decided to travel to see his mother;
(2)the appellant was on a pension and suffered from anxiety and depression. He has a long history of substance abuse. Despite his conviction for driving under suspension in February 2019, he had a 'somewhat limited' driving record; and
(3)it would be unjust to trigger the suspended term of imprisonment given that his offending was of a different nature to the offences for which the SIO had been imposed. In particular, the complainant for the Assault Offence was his partner and he had reconciled with her since committing that offence.
The magistrate's sentencing remarks
In the course of sentencing submissions, the magistrate reminded the appellant he had been warned when sentenced in February 2019 that it was likely he would go to prison if he committed an offence for which a sentence of imprisonment could be imposed during the term of the SIO. The warning included a reference to the offence of driving while disqualified:
If you commit any other offence that carries imprisonment in the next year, you are likely to go to jail for 13 months on top of any other penalty. That includes, if you choose again to disregard the disqualification that has been placed upon you and you choose to get onto your Ninja motorcycle, or if you trespass or if you assault anyone … all of those offences can carry imprisonment, and you are likely to be jailed.[1]
[1] 10 June 2019, ts 5.
The magistrate referred again to that warning in the sentencing remarks and noted that:
So within [weeks] of being placed upon the suspended imprisonment order you chose to blatantly disregard what was said, disregard the suspension placed upon you on that date as well, because [not] only had you the suspended imprisonment order but you also had a driving under suspension and chose to drive.[2]
[2] 10 June 2019, ts 6.
Her Honour concluded that it would not be unjust to activate the suspended imprisonment order given the further offences committed by the appellant on 28 March 2019.
In sentencing the appellant for the Driving Offence, the magistrate found the offending was aggravated by several factors: the appellant's state of intoxication; the risk of injuring his partner by driving his motorcycle with her as a passenger while intoxicated; the risk posed to other road users by driving while suspended and intoxicated; and the proximity in time between the offence and the appellant's previous conviction for driving while suspended.
The magistrate noted the appellant pleaded guilty by an endorsed plea. Her Honour stated the appellant was to be given 'full credit' for the plea ‑ presumably, by reducing the sentence that would otherwise have been imposed by the full amount permitted under s 9AA of the Sentencing Act 1995 (WA). The appellant has not suggested otherwise by his grounds of appeal.
The appellant's record
The appellant was convicted for driving while under suspension or without a motor vehicle driver's licence prior to 1997. However, s 107 of the Road Traffic (Administration) Act 2008 (WA) provides that:
If ‑
(a)a person is convicted of an offence under a road law (the present offence); and
(b)the penalty or penalties which may or are required to be imposed for the present offence vary according to whether the person has been convicted previously of an offence under a road law,
any previous offence the conviction for which was recorded more than 20 years before the commission of the present offence is not to be taken into account in determining the penalty or penalties to be imposed for the present offence.
Accordingly, the offences committed by the appellant prior to 1997 were not to be taken into account in determining the penalty to be imposed for the offence committed in March 2019.
The magistrate did not refer to the appellant's criminal or traffic record in sentencing him. However:
(1)in addition to the offence for which he was convicted in February 2019, the appellant was convicted of driving without a motor vehicle driver's licence in 2006;
(2)the appellant has also been convicted of other traffic offences, including driving under the influence, three times in 1992 and again in 2002, and driving with an excess blood alcohol content in 1998 and 2006; and
(3)the appellant also has a significant criminal record apart from traffic offences. He was first convicted of an offence as an adult in March 1998. He has six convictions for assault apart from the Assault Offence committed on 9 October 2017. He has other convictions for violent or aggressive conduct: possessing a weapon; resisting arrest; disorderly conduct; threatening words; breach of a restraining order; and criminal damage. He also has convictions for arson; burglary; stealing; and various drug offences.
The relevant principles
The principles that apply to an appeal against sentence are well‑established. They were outlined by the Court of Appeal in Wilson v The State of Western Australia.[3] Those principles also apply to an appeal under pt 2 of the Criminal Appeals Act 2004 (WA): Closter v Humphreys.[4]
[3] Wilson v The State of Western Australia [2010] WASCA 82.
[4] Closter v Humphreys [2012] WASC 145.
An appeal court will not intervene to set aside a sentence merely because it might exercise the sentencing discretion in a manner different from the sentencing judge.[5] Rather, an appeal court should only intervene if a material error of fact or law has been made or the result is manifestly unreasonable or unjust.[6] Accordingly, the fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh. Further, s 14(2) of the Criminal Appeals Act applies to sentencing appeals: Abeyakoon v Brown.[7] In Wallam v Dent,[8] Jenkins J said:
I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.
[5] Lowndes v The Queen [1999] HCA 29, (1999) 195 CLR 665.
[6] Dinsdale v The Queen [2000] HCA 54, 202 CLR 321.
[7] Abeyakoon v Brown [2011] WASCA 63, (2011) 211 A Crim R 338 [32].
[8] Wallam v Dent [2008] WASC 170 [31].
Allanson J agreed with those observations in Miller v Byrne,[9] and I have followed those decisions in past appeals.
[9] Miller v Byrne [2016] WASC 236 [39].
The error may be express or implied. A plea that a sentence is manifestly excessive is an allegation of implied error. A sentence may infringe the totality principle because of an express error. However, a general plea that the total effective sentence infringed the first limb of the totality principle is an allegation of implied error.
In determining whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty for the offence, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that kind and the personal circumstances of the offender.
The first limb of the totality principle requires that the total sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally. Where the principle of totality applies, it is of little importance how the ultimate aggregate is made up.[10] Consequently, although there may be instances where it is appropriate to consider whether an individual sentence was tainted by an express error, 'generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.'[11] However, the severity or leniency of an individual sentence may be relevant to assessing whether the total effective sentence infringes the totality principle.[12]
[10] R v Holder [1983] 3 NSWLR 245; The State of Western Australia v Roffey [2007] WASCA 246 [26] (McLure JA, as her Honour then was, with whom Steytler P and Miller JA agreed).
[11] Giglia v The State of Western Australia [2010] WASCA 9 [40], Owen JA with whom McLure P and Pullin JA agreed.
[12] That emerges from Giglia, and see also McKenzie v The State of Western Australia [2015] WASCA 163 [43], in the judgment of Buss JA, as his Honour then was.
Ground 1
The penalties for driving without a licence or under suspension are designed to be both punitive and to secure public safety. There is a strong need for general and personal deterrence in cases of persistent offending.[13]
[13] Neves v Rogers [2013] WASC 440 [38] and see Gable v Nardini [2010] WASC 321.
In Neves v Rogers, Beech J (as his Honour then was) observed that a review of previous cases revealed 'a relatively stable pattern' of sentences for driving under suspension: 'convictions of driving while under suspension involving fourth, [fifth] sixth seventh or eighth offences have commonly resulted in terms of imprisonment of between 4 and 9 months'; multiple offending in excess of that number of convictions has attracted more severe sentences.[14] This pattern of sentencing identified by Beech J was taken from the judgment of EM Heenan J in Gable v Nardini.[15]
[14] Neves v Rogers [2013] WASC 440 [39] – [41].
[15] Gable v Nardini [2010] WASC 321 [28].
It is also relevant to note that driving in breach of a court-imposed suspension has ordinarily been regarded as more serious than driving with an expired licence. That is because the driving in contravention of a court-imposed sanction involves deliberately defying a court order.
The pattern of sentencing for the offence of driving under suspension identified by Beech J in Neves v Rogers and EM Heenan J in Gable v Nardini might suggest that the sentence imposed by the magistrate for the Driving Offence was severe. However, the appellant's offending was a particularly egregious example of the offence. He was acutely intoxicated. He had been convicted of the same offence approximately six months previously. He was carrying a passenger on his motorcycle. The offence for which he had been convicted in February 2019 had been committed while he was subject to a CBO, and the Driving Offence had been committed while he was subject to the SIO. In the circumstances, I do not consider that the sentence imposed was outside the range of sentences available to the magistrate in the sound exercise of the sentencing discretion. However, the severity of the sentence is relevant to the second ground of appeal. In respect of the first ground of appeal, the appellant will be denied leave to appeal.
Ground 2
The magistrate did not refer to the circumstances of the offences that had been the subject of the SIO, nor did her Honour expressly refer to the totality principle in sentencing the appellant to the cumulative terms of imprisonment imposed at the sentencing hearing on 10 June 2019. However, it is not alleged that her Honour made an express error in accumulating the sentence for the Driving Offence with the sentences to be served on cancelling the SIO. That may be because the magistrate was familiar with the circumstances of the Assault Offence and the Breach of Bail Offence as her Honour had made the SIO.
The facts on which the appellant was sentenced for the Assault Offence were in summary:
(1)The victim was the appellant's partner. There was an argument in which the appellant placed the victim in a headlock and attempted to drag her to the floor. The victim resisted and the appellant placed his hand over the victim's face and rubbed it, causing minor lacerations. The argument continued and the appellant went to a bedroom to obtain a small multi-tool, returned to where the victim was, placed her in a headlock and used the knife from the tool to poke the victim in the upper chest and neck with the point of the knife. A struggle ensued, during which the appellant used the knife to stab the victim, causing a small puncture wound to the right forearm. However, medical treatment was not required for that wound or any other injury suffered by the victim.
(2)The appellant made full admissions to the police following his arrest and was granted bail.
(3)It was submitted on behalf of the appellant at the sentencing hearing held on 27 November 2017 that he and the victim had been drinking for some time prior to the assault; he had apologised to the victim immediately after the assault; he and the victim had reconciled; and he was remorseful for his conduct.
The circumstances on which the appellant was sentenced for the Breach of Bail Offence were in summary:
(1)The appellant was granted bail in respect of the Assault Offence on conditions that included he was not to contact or attempt to contact the victim of the Assault Offence (the Protected Person), and was not to enter or remain upon an address in Warnbro where he and the Protected Person resided (the Restricted Place).
(2)On the day after bail was granted, the police attended the Restricted Place and located the appellant in the main bedroom with the Protected Person.
(3)The appellant stated he was not aware of the protective bail conditions and claimed that the Protected Person did not object when he returned to the Restricted Place.
The appellant represented himself at the sentencing hearing on 8 February 2019. The appellant stated he drove while suspended because (for the offence dealt with on that occasion) he had a friend who was experiencing suicidal thoughts and he wanted to see his friend to calm him down.
The only other submission the appellant made in mitigation was to inform the magistrate that he was still in a relationship with the victim of the Assault Offence and they were engaged to be married. The magistrate made no reference to the appellant's pleas of guilty to the Assault Offence and the Breach of Bail Offence, in imposing the terms of imprisonment for those offences and making the SIO.
The offences were committed in October 2017 and the appellant pleaded guilty the following month. He admitted his offending on being arrested, and it may be inferred that the appellant pleaded guilty to the Assault Offence and the Breach of Bail Offence at the earliest reasonable opportunity. The assault was serious, given that the appellant had armed himself with a multi-tool, including a small knife, and placed the victim in a headlock and had persisted in assaulting her. The seriousness of the offending is obviously aggravated by the domestic context. General and personal deterrence and the need to punish serious instances of domestic violence were significant sentencing considerations. Similarly, general and personal deterrence were significant sentencing considerations for the Breach of Bail Offence. The conditions imposed on the grant of bail were intended to protect the person who had been subjected to a serious assault. However, the victim apparently allowed the appellant to return to the restricted place, so that the appellant did not force his way into the place, and there were no further reported instances of violence by the appellant towards the victim after the assault in October 2017.
In my view, the sentence of 8 months' imprisonment imposed for the Assault Offence cannot be characterised as manifestly excessive, even allowing for the appellant's plea of guilty. However, the sentence is at the upper end of the range of sentences that could have been imposed in the sound exercise of the sentencing discretion, given that the victim did not suffer any injury that required medical attention and the appellant pleaded guilty at the earliest reasonable opportunity.
Arguably, the sentence of 5 months' imprisonment for the Breach of Bail Offence was manifestly excessive, after taking into account the appellant's plea of guilty, other mitigating factors, and the range of sentences customarily imposed for the offence. Those comments would also apply to the term of imprisonment of four months, rather than 5 months, that was imposed by the sentencing magistrate on 10 June 2019.
It is not alleged in the appeal that the sentences for the Assault Offence or the Breach of Bail Offence were manifestly excessive. However, the severity of the sentences is relevant in determining whether the total effect of sentence imposed by the magistrate on 10 June 2019 infringed the first limb of the totality principle. Further, it does not appear that the magistrate took into account the appellant's plea of guilty in determining the sentence to be imposed for the Driving Offence. The grounds of appeal do not expressly refer to that admission, but in my view it is relevant in determining whether the total effect of sentence infringed the totality principle.
It appears that the appellant pleaded guilty at the earliest reasonable opportunity, having regard to the timing of the offence and the appellant's sentencing. In the circumstances, I consider that the first limb of the totality principle was infringed by accumulating the sentences imposed for the Assault Offence, the Breach of Bail Offence and the Driving Offence. Accordingly, the orders that will be made in the appeal are as follows:
(1)The appellant is granted leave to extend the time within which to appeal.
(2)The appellant is granted leave to appeal on ground 2.
(3)The appeal is allowed on ground 2.
(4)The sentences imposed on 10 June 2019 are varied so that the term of 4 months' imprisonment imposed for the Driving Offence is to be served concurrently with the sentences imposed on the Assault Offence and the Breach of Bail Offence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy21 NOVEMBER 2019
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