K (a child) v Panaia
[2011] WASC 210
•22 AUGUST 2011
K (a child) -v- PANAIA [2011] WASC 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 210 | |
| 22/08/2011 | |||
| Case No: | SJA:1064/2011 | 15 AUGUST 2011 | |
| Coram: | HALL J | 15/08/11 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | K (a child) LAWRENCE PANAIA ALEXANDER DAVID GEORGE PAICE |
Catchwords: | Criminal law Sentence Extension of time to appeal after long delay Section 60(1) Road Traffic Act 1974 (WA) Whether permanent disqualification open for first and second offences Reference to a 'period' of disqualification includes permanent disqualification Whether permanent disqualification manifestly excessive Turns on own facts |
Legislation: | Children's Court of Western Australia Act 1988 (WA) Justices Act 1902 (WA) Road Traffic Act 1974 (WA), s 59(3), s 60(1), s 60(3), s 76, s 78, s 106A Sentencing Act 1995 (WA), s 104 |
Case References: | Binns v Gardiner [2002] WASCA 337 Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1 Carter v Denham [1984] WAR 123 Horton v Burton (1999) 28 MVR 415 Horton v Burton [1999] WASCA 82; (1999) 29 MVR 295 House v The King (1936) 55 CLR 499 Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132 Matta v The Queen [2011] WASCA 2 Richards v Damianopolous [2002] WASCA 159 Tubbs v Pomykaj [2009] WASC 379 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LAWRENCE PANAIA
First Respondent
ALEXANDER DAVID GEORGE PAICE
Second Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE
File No : PE 16076 of 1989, PE 19149 of 1989
(Page 2)
Catchwords:
Criminal law - Sentence - Extension of time to appeal after long delay - Section 60(1) Road Traffic Act 1974 (WA) - Whether permanent disqualification open for first and second offences - Reference to a 'period' of disqualification includes permanent disqualification - Whether permanent disqualification manifestly excessive - Turns on own facts
Legislation:
Children's Court of Western Australia Act 1988 (WA)
Justices Act 1902 (WA)
Road Traffic Act 1974 (WA), s 59(3), s 60(1), s 60(3), s 76, s 78, s 106A
Sentencing Act 1995 (WA), s 104
Result:
Extension of time to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
First Respondent : Mr N T L John
Second Respondent : Mr N T L John
Solicitors:
Appellant : Andrew Maughan & Associates
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
(Page 3)
Case(s) referred to in judgment(s):
Binns v Gardiner [2002] WASCA 337
Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1
Carter v Denham [1984] WAR 123
Horton v Burton (1999) 28 MVR 415
Horton v Burton [1999] WASCA 82; (1999) 29 MVR 295
House v The King (1936) 55 CLR 499
Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132
Matta v The Queen [2011] WASCA 2
Richards v Damianopolous [2002] WASCA 159
Tubbs v Pomykaj [2009] WASC 379
(Page 4)
- HALL J:
(These reasons were delivered orally on 15 August 2011 and edited from the transcript.)
1 The appellant seeks an extension of time and leave to appeal against sentences imposed in the Children's Court on 15 January 1990. The respondent opposes the extension of time.
2 The delay is gross. The appeal notice was filed on 27 June 2011, more than 21 years after expiry of the appeal period.
3 It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
4 The purpose of the court's power to extend time is to achieve justice in a particular case. That is not confined to justice from the appellant's perspective. There is a public interest in compliance with time limits: Matta v The Queen [2011] WASCA 2 [15].
5 The following five factors are relevant in determining an application for an extension of time:
(1) the nature and extent of the delay;
(2) the reasons for the delay;
(3) the proposed grounds of appeal and their merit;
(4) the prejudice to the appellant if an extension is not granted; and
(5) the prejudice to the State or the respondent if an extension is granted.
6 The appellant's solicitor has sworn an affidavit in support of the application. She deposes that she was instructed by the appellant on 21 April 2010 to make an application for an extraordinary driver's licence. In pursuing that application, the solicitor became aware that the appellant was disqualified from holding a driver's licence for life in the Perth Children's Court on 15 January 1990. She then received instructions to appeal that order. She says that the appellant was not aware prior to instructing her that he had prospects of appealing the life disqualification. The solicitor says she believes that the appellant has good prospects of
(Page 5)
- succeeding on the basis of the decision of the Full Court in Carter v Denham [1984] WAR 123.
7 On the face of it there is nothing exceptional about the reasons for delay. The case upon which the appellant relies was decided before his disqualification was imposed. Thus, if that case affords grounds for appealing, they have always been open. The fact that many years later the appellant consulted a lawyer who advised him to appeal could not possibly in itself justify the delay.
8 The application for extension thus critically depends upon whether the proposed ground has merit. There is one proposed ground; it is that the magistrate who imposed the life disqualification erred because the two charges dealt with on 15 January 1990 should both have been dealt with as second convictions for the purpose of sentencing.
Background facts
9 On 15 January 1990 the appellant was convicted of 31 offences in the Children's Court. He was 16 at the time. Most of the offences came under the Road Traffic Act 1974 (WA) and they were committed between 19 August 1989 and 15 November 1989. Two of the offences were for reckless driving contrary to s 60(1) of the Road Traffic Act. These are charges numbered 16076 of 1989 and 19149 of 1989 and are the charges the subject of this appeal.
10 The first reckless driving offence was committed on 26 September 1989 and the second on 15 November 1989. On the first offence the appellant was sentenced to strict custody for 3 months and was permanently disqualified from holding or obtaining a driver's licence. On the second offence he was sentenced to 6 months' strict custody and was again permanently disqualified from holding a driver's licence.
11 Due to the lapse of time, no transcript of the Children's Court proceedings is available. However, police records provide the circumstances of the 31 charges dealt with on 15 January 1990. These provide the context in which the sentences on the two relevant charges were imposed. Those records have been provided as annexures to an affidavit filed by the respondent. No objection to that affidavit or its annexures was made.
12 Those circumstances are as follows. On 19 August 1989 the appellant drove seven stolen vehicles around the metropolitan area and this resulted in six charges of driving without a motor driver's licence, his
(Page 6)
- licence being suspended at the time, and seven charges of unauthorised driving.
13 On 24 September 1989 there was an offence of driving without a motor driver's licence; again, his licence was suspended at the time, and a charge of unauthorised driving resulted. The circumstances were that the appellant broke into a motor vehicle, removed the ignition barrel, started the vehicle with a screwdriver and then drove the vehicle.
14 On 26 September 1989 he committed a further offence of driving without a motor driver's licence which resulted in another charge of unauthorised driving. He also committed an offence of failing to stop when called upon, an offence of reckless driving (being charge 16076, one of the offences the subject of this appeal), and two offences of breaking, entering and stealing.
15 The facts in relation to the events of 26 September 1989 were that the appellant and another person broke the window of certain premises, took several items from within those premises and drove away. The appellant was the driver of a vehicle and accelerated away from police when they activated their lights. After a chase the police stopped the vehicle and the appellant was then caught after running away from the vehicle.
16 On 13 November 1989 further offences were committed. These involved three offences of driving without a motor driver's licence, it being suspended, and three offences of unauthorised driving. On that occasion the appellant drove three stolen motor vehicles.
17 Finally, on 15 November 1989 the appellant committed a further offence of driving without a motor driver's licence, it being suspended. He was also convicted of a charge of failing to stop when called upon, a charge of reckless driving (being charge 19149, the second of the two charges the subject of this appeal) and a further charge of dangerous driving causing bodily harm.
18 The facts in relation to the events of 15 November 1989 were that the appellant was the driver of a stolen vehicle that was involved in a high-speed pursuit. The police called upon the appellant to stop but he failed to do so, instead driving in a reckless manner through the streets. He was involved in a traffic accident but failed to stop at the scene and continued to drive in a reckless manner and collided with another vehicle, causing bodily harm to a female driver of that vehicle.
(Page 7)
19 That places the offences in this case in context. However, I do not suggest that the other offences should be taken into account in determining what was the appropriate penalty for the two offences that were the subject of this appeal. I should also note that those facts have been derived from police records rather than any statement of facts that was placed before the court or any transcript. In those circumstances, it cannot be known with certainty that those were the facts upon which the magistrate determined the appropriate penalty. However, they are the best indication that is available as to what the factual circumstances were.
20 There had been an earlier conviction for reckless driving. This was an offence committed on 30 September 1989 and for which the appellant was convicted on 9 October 1989 (the earlier conviction). Thus, as at 15 January 1990 the appellant had one prior conviction that was relevant in determining penalty for the two offences in this case.
Statutory penalties
21 Whether the charges relevant to this appeal were first, second, third or subsequent offences was of significance because of the different scales of penalties provided for in s 60(3) of the Road Traffic Act.
22 At all relevant times s 60(3) provided that for offences under s 60(1) the penalty was:
(a) for a first offence, a fine of $500 or imprisonment for three months and mandatory disqualification for a period not less than six months;
(b) for a second offence, a fine of $600 or imprisonment for six months and a mandatory disqualification for a period not less than 12 months; and
(c) for a third or subsequent offence, a fine of $1,200 or imprisonment for 12 months and mandatory permanent disqualification; that is, disqualification for life.
23 As is evident from this, whether an offence is a first, second, third or subsequent offence is significant because it affects both the maximum penalty and the minimum period of disqualification.
24 The appellant submits that both of the charges relevant to this appeal should have been treated as second offences. This is said to be because both convictions occurred on the same day and prior to that day there had been only one prior conviction for a relevant offence.
(Page 8)
25 The appellant relies in this regard upon Carter v Denham as authority for the proposition that convictions occurring together do not result in multiple steps in the graduated system of penalties. The rationale for this is that an offence would not ordinarily be considered a second offence unless at the time it was committed the offender had a prior conviction. Similarly, an offence would not be considered a third offence unless the offender had two prior convictions when he committed that third offence.
26 This directs attention to the time that a subsequent offence was committed rather than the time of conviction. The rationale for this approach not only accords with logic and commonsense; it also provides justification for the increasing scale of penalties. An offender who commits an offence in circumstances where he has committed and been convicted of a previous similar offence might justifiably be thought to be more culpable.
Was permanent disqualification open?
27 The order in which convictions are recorded will not necessarily accord with the order of commission of the offences. In fact, when regard is had to the dates of commission of the offences in this case, the position is not that advanced by the appellant; rather, as the respondent correctly points out, charge 16076 should properly have been regarded as a first offence and 19149 as a second offence. This is because charge 16076 was committed on 26 September 1989. That was prior to the earlier conviction.
28 The appellant had been convicted, as I have mentioned, on 9 October 1989 of a reckless driving offence, which was an offence committed on 30 September 1989. Accordingly, as at the date that charge 16076 was committed, 26 September 1989, there were no prior convictions for reckless driving. Accordingly, that offence falls to be considered as a first offence.
29 However, charge 19149 was an offence committed on 15 November 1989. Thus as at the date of commission of that offence the 30 September 1989 offence had occurred, as had a conviction for that offence on 9 October 1989. Accordingly, charge 19149 was a second offence for the purposes of sentencing.
30 The appellant submits that mandatory life disqualification should not have been imposed in the circumstances. The implication is that the magistrate who imposed sentence must have erred in treating one or other
(Page 9)
- of the two charges dealt with on 15 January 1990 as a third offence. There is an assumption in this argument that life disqualification either could not or should not have been imposed if the offences were not treated as third or subsequent offences. That assumption faces a number of obstacles.
31 Firstly, s 60(3) does not mandate maximum periods of disqualification. The periods of disqualification stipulated for first and second offences are preceded by the words 'not less than'. This clearly means that a minimum disqualification must be ordered but it is open to exercise a discretion to order a longer period. It would be wrong to construe s 60(3) as giving rise to any presumption that the minimum period of disqualification is to be imposed, or that the minimum period for a second offence is the maximum period for a first offence: Richards v Damianopolous [2002] WASCA 159 [15] - [18] (McLure J). Accordingly, it would be wrong to reason that permanent disqualification is reserved for third or subsequent offences and cannot be imposed for a first or second offence.
32 The correct position, in my view, is that whilst permanent disqualification is mandatory for a third offence, that does not preclude a court in an appropriate case from imposing it for a first or second offence. This conclusion accords with the plain words of s 60(3).
33 The second obstacle to the argument raised by the appellant is that there is no transcript or other record of proceedings which establishes that the magistrate made an error of the type asserted. The appellant's argument relies entirely on the outcome to infer error. However, because life disqualification is not excluded as an option for a first or second defence, it does not follow logically from the fact that such orders were made that the magistrate must have erroneously treated one of these offences as a third offence.
34 There have been conflicting decisions as to whether the reference to a period of disqualification includes permanent disqualification. Those decisions are Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132, Horton v Burton (1999) 28 MVR 415 (McKechnie J) and, on appeal, Horton v Burton [1999] WASCA 82; (1999) 29 MVR 295.
35 In my view, the better interpretation is that the word 'period' does include permanent disqualification. That conclusion is consistent with other provisions, including s 59(3) of the Road Traffic Act, and with the Full Court decision in Binns v Gardiner [2004] WASCA 275; (2004) 151
(Page 10)
- A Crim R 1 which related to an analogous provision of the Firearms Act 1973 (WA).
36 In argument today, counsel for the appellant referred to s 106A of the Road Traffic Act, which was introduced in 2003, as evidencing a change in the law in regards to whether permanent disqualification could be imposed for first or second offences under the relevant provision.
37 Section 106A provides that:
106A. Mandatory disqualification
(1) If this Act requires a court to disqualify an offender from holding or obtaining a driver’s licence -
(a) for a specific period provided in relation to the offence concerned (including permanent disqualification);
(b) for a period not less than a minimum period provided in relation to the offence concerned; or
(c) for a period not less than a minimum period, and not more than a maximum period, provided in relation to the offence concerned,
the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -
(d) for that period;
(e) for a period not less than that minimum period; or
(f) for a period not less than that minimum period and not more than that maximum period.
(2) Subsection (1) has effect despite any other written law.
(Page 11)
- imposed regardless of the penalty otherwise given for the offence. Section 106A was introduced in circumstances where the range of sentences available for offences of this type was broadened.
39 Though no reliance was placed on s 104 of the Sentencing Act 1995 (WA), I do not consider that that provision effected any change in the law regarding the availability of permanent disqualification for first or second offences. Section 104 expressly states that a term of disqualification imposed under pt 15 of the Sentencing Act may be for the life of the offender. Whether such an option is available must nevertheless depend on the wording of the offence provision. In my view, s 104 only made explicit what was previously implicit in s 60(3) of the Road Traffic Act (a similar conclusion was reached in respect of the Firearms Act by Hasluck J in Binns v Gardiner [2002] WASCA 337).
40 There is no reason to interpret s 60(3) as providing for a limit to the discretion in regard to disqualification for first and second offences where there is no express limit provided. In my view, it would require some express words to indicate that the discretion of a court has been limited in that regard.
Was permanent disqualification manifestly excessive?
41 In these circumstances what the appellant must do is establish that there was an implied error in the exercise of the sentencing discretion. It is not enough that an appellate court might consider that it would have taken a different course. It must be shown that the sentencing court has acted upon a wrong principle, been influenced by an irrelevant factor, failed to take a material consideration into account or that the result is so plainly unreasonable or unjust as to imply that an error in the exercise of a discretion must have occurred: House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt and McTiernan JJ).
42 In the present case the appellant cannot demonstrate any express error and must rely upon an argument that the orders of life disqualification were so unreasonable or unjust as to manifest error in the exercise of discretion.
43 I would readily accept that permanent disqualification for a first or even a second offence against s 60(1) of the Road Traffic Act would be an exceptional order: Tubbs v Pomykaj [2009] WASC 379. However, there are indications that in this case the circumstances may well have justified such orders.
(Page 12)
44 I have referred to the circumstances of the offending as revealed by the police records. They were clearly serious in nature. As I have also mentioned, the offender was 16 at the time of these offences. That is of course a relevant consideration. He was a person of a young age and it would no doubt have been important for the sentencing magistrate to take that into account in determining the appropriate penalty.
45 Nonetheless, it does not follow that permanent disqualification would necessarily be excluded for a person of this age. It should be noted that the appellant did not come before the Children's Court as a first offender. Indeed, he had a significant record and the circumstances in which these offences occurred were in themselves, it would seem, serious.
46 From an examination of the criminal record that has also been provided to the court as an annexure to the affidavit filed by the respondent, it would seem that when the appellant came before the court on 15 January 1990 he had numerous prior offences, including several of driving without a motor driver's licence and of unauthorised use of a motor vehicle.
47 The appellant can garner no favourable inference from the relative incompleteness of the records. That is a function of the long delay in this matter. What the appellant must establish is that there was a failure in the exercise of discretion. In doing so it would be necessary to show not merely that a permanent disqualification would be an exceptional thing to impose but that it was not properly open to impose such a disqualification in the circumstances of this case.
48 I am unable to conclude that a permanent disqualification was not open to the magistrate in the proper exercise of a discretionary judgment. It is not apparent that such an order was manifestly excessive given what is known of the offences and the personal circumstances of the appellant. In those circumstances, the ground of appeal, in my view, has no prospect of success.
Other issues
49 This application, I should note, has been determined on the basis that the relevant provisions that apply to this appeal are the Children's Court of Western Australia Act 1988 (WA) and the Justices Act 1902 (WA) as they stood in 1990 and it is those provisions that I have had regard to. However, the substantive question of whether an extension of time should be granted and the factors to be taken into account are not materially different.
(Page 13)
50 I also note, as has been referred to by the respondent's counsel in this case, that it is open for the appellant to apply to the District Court for an order that the permanent disqualifications be removed as 10 years has expired since they took effect. Such an application could be made under s 78 of the Road Traffic Act.
51 It is also open for the appellant to apply to the Magistrates Court for an order that he be granted an extraordinary driver's licence under s 76. Indeed, counsel for the appellant advised me today that such a licence has in fact been granted to the appellant, though subject to restrictive conditions.
52 In making those references to other options I should point out that they have not in any way been material to my determination of the merits of the proposed ground of appeal. They are, however, relevant to the question of what prejudice the appellant would suffer if an extension is not granted.
Conclusion
53 An extension of time is refused on the basis that the ground of appeal lacks any merit and that the delay is gross and without adequate justification. Accordingly, the orders of the court are that an extension of time is refused and the appeal is dismissed.
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