Humble v State Solicitor for Western Australia

[2009] WASC 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HUMBLE -v- STATE SOLICITOR FOR WESTERN AUSTRALIA [2009] WASC 99

CORAM:   McKECHNIE J

HEARD:   6 APRIL 2009

DELIVERED          :   6 APRIL 2009

PUBLISHED           :  22 APRIL 2009

FILE NO/S:   SJA 1009 of 2009

BETWEEN:   GREGORY DOUGLAS HUMBLE

Appellant

AND

STATE SOLICITOR FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HEANEY

File No  :PE 20687 of 2008, PE 20688 of 2008, PE 20690 of 2008

Catchwords:

Criminal law - Sentences - Driving under suspension - Whether 12 months' imprisonment excessive - Time in custody not taken into account

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr D F Van Zalm

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. McKECHNIE J:  In the Magistrates Court at Perth on 9 February 2009 the appellant pleaded guilty to three charges and was sentenced to a total term of imprisonment of 12 months.  He filed a notice of leave to appeal and an application for bail.

2. At the hearing on 6 April 2009, which started out as a bail hearing, without opposition by counsel for the respondent (whose assistance in unravelling the matter I acknowledged), I granted leave to appeal, allowed the appeal, reduced the head sentence to one of 6 months and 1 week.  These are my reasons for doing so.

The conviction

1. The resolution of this appeal was considerably complicated by reason of the fact that although the appellant appealed promptly, no transcript of the proceedings before the magistrate could be obtained.

2. The appellant was sentenced as follows:

   •(PE 20688/08) No MDL, driving while suspended (Road Traffic Act s 49(1) and (2)(a)(iii) - 12 months' imprisonment - concurrent;

   •(PE 20687/08) steal motor vehicle (Criminal Code s 378) - 6 months' imprisonment - concurrent;

   •(PE 20690/08) criminal damage (Criminal Code s 444(b)) - 3 months' imprisonment - concurrent.

   All sentences were made concurrent to take effect from the day of sentence.

3. The appellant's recollection, which may well be accurate, is that he received the 12 month sentence for stealing the motor vehicle and a 6 month sentence for driving under suspension.  However, the warrant of commitment signed by the magistrate details the sentences as I have outlined them.

4. The facts on the statement of material facts were as follows:

   Summary of Offence (Steal MV PE 20687/08)

   Around 12.30pm on Wednesday the 12th of March 2008 the accused attended Derek Flatman and Associates car yard at 391 Guildford Road Bayswater.  The accused approached the sales assistant and enquired into purchasing a vehicle.  The accused showed interest in a 1994 gold Mercedes 220E sedan and informed the sales assistant he wished to purchase it.  An agreement was made for the accused to take the vehicle and have it checked by his mechanic in Wright Street, Bayswater.  The assistant agreed to let him take the car on his own provided it was back by 1.30pm, to which the accused agreed.  The accused drove the vehicle out of the car yard, turned right onto Garrat [sic Garratt] Road heading north towards Whatley Cresent [sic Crescent].  The sales assistant contacted police for advice as he feared the car would not be returned and again later when the vehicle was not returned within the required time frame.  At about 2:30pm on Saturday the 15th March 2008, Police attended 80 Crowther Street Bayswater and located both the accused and vehicle.  The accused was arrested and conveyed to Bayswater Police Station, where he refused to participate in a video record of interview.  Accused refused bail and conveyed to Perth Watch House.  Present charges preferred.  EXPLANATION: 'If the guy at the yard had been nicer this wouldn't have happened.'

   ...

   Summary of Offence (Criminal Damage PE 20690/08)

   And further; As previously stated, the accused gained access into the premises at 80 Crowther Street Bayswater by smashing a window located on the side of the house.  EXPLANATION: My keys were taken away from me. REQUEST RESTITUTION: smashed window, valued at $200.00, the property of Trevor THOMPSON

   ...

   Summary of Offence (No MDL PE 20688/08)

   And further; About 12.30pm 12 March 2008 the accused drove a gold Mercedes 220E Sedan registered number 1AYL 425 north along Garatt [sic Garratt] Road BAYSWATER.  It was ascertained that he was not the holder of a current valid motor driver's licence for the class of vehicle he was driving.  The accused's driver's licence was suspended in the Perth Magistrates Court on the 01/07/2007 until 03/07/2012 for driving under the influence.

5. Something needs to be said about the appellant's background.  It appears that he had lived a generally law-abiding life until the year 2004 when his marriage fell apart, he began drinking and he says that a previously undiagnosed bi‑polar condition became active.  Certainly his record bears this out to some degree.  He has offended extensively in the last few years but not to any extent prior to that.  The magistrate obtained a pre‑sentence report.  The writer noted:

   Over the past year Mr Humble's bi‑polar condition has had a significant impact on his behaviour, resulting in several hospital admissions for treatment.

6. It was noted in a psychiatric report:

   His offending behaviour is linked to his alcohol use and non-compliance of medications.

7. There is no reasonably arguable ground that the sentence for stealing the motor vehicle and for unlawful damage, having regard to the appellant's recent record, were excessive.

8. In respect of the offence of driving while under suspension, the situation is slightly different.  The appellant had six previous convictions for driving while under suspension on five separate occasions.  Those were on 3 January 2006 and 1 June 2007.  On that last occasion he was dealt with for a number of other offences.  For each he received a CBO.  The matters under appeal breached the CBO.  I am advised by the appellant that on 2 April 2009 he pleaded guilty to all the breach matters, of which there were a considerable number, and received a total sentence of 2 months' imprisonment to be served concurrently with the present sentence.

9. There can be no reasonably arguable ground that a sentence of immediate imprisonment is wrong for repeated driving while under suspension.  However, in my judgment, in all the circumstances, including the appellant's mental health issues, a sentence of 12 months' imprisonment exceeded the range of a sound sentencing disposition.  I reached this conclusion with some diffidence because the magistrate's reasoning is unavailable.  However, although diffidently reached, I am firmly of the view that to escalate from a CBO for the previous breaches to a 12 month sentence of immediate imprisonment is a sentencing error. I have had regard to sentences on appeals in cases of repeated driving under suspension. In my opinion, a sentence of 8 months would be appropriate.

10. Counsel for the DPP has noted that the appellant spent approximately 7 weeks in custody for these offences between 17 March and 1 May 2008.  There is no reason why that time should have been left out of account.  The sentence of 12 months' imprisonment does not appear to have taken it into account and nor did the warrant show a backdate of the sentence.  On that basis, I inferred error in failing to backdate and therefore reduce the sentence by 7 weeks to a sentence of 6 months and 1 week's imprisonment.  The concurrent sentences were not interfered with.