Knights v Ward
[2022] WASC 267
•18 AUGUST 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KNIGHTS -v- WARD [2022] WASC 267
CORAM: SOLOMON J
HEARD: 22 JULY 2022
DELIVERED : 17 AUGUST 2022
PUBLISHED : 18 AUGUST 2022
FILE NO/S: SJA 1029 of 2022
BETWEEN: ASHLEIGH RITA KNIGHTS
Appellant
AND
ANDREW ROGER WARD
Respondent
ON APPEAL FROM:
For File No: SJA 1029 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L ATKINS
File Number : MH 4061 - 4080 of 2021
Catchwords:
Criminal law – Appeal against sentence – Totality principle – Where offender convicted of multiple counts of driving without authority – Whether sentence infringes totality principle – Whether sentence manifestly excessive – Whether sentence of imprisonment should have been suspended - Whether delay in charging was mandatory consideration in sentencing - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 5
Criminal Appeals Act 2004 (WA), s 8(1)
Road Traffic Act1974 (WA), s 11(3), s 49, s 49(1)(a), s 49(1)(c)(ii), s 49(3)(c), s 49(9)
Sentencing Act 1995 (WA), s 39(3), s 89
Result:
Appeal allowed
Appellant re-sentenced to 7 months' immediate imprisonment
Category: B
Representation:
Counsel:
| Appellant | : | S Rafferty |
| Respondent | : | T Ledger |
Solicitors:
| Appellant | : | Seamus Rafferty Barristers & Solicitors |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Dinsdale v The Queen (2000) 202 CLR 321
Eriha v The State of Western Australia [2011] WASCA 167
Fogg v The State of Western Australia [2011] WASCA 11
Jackman v Davidson & Anor [2019] WASC 364; (2019) 90 MVR 11
Kabambi v The State of Western Australia [2019] WASCA 44
Lemmon v Walke-Mclean [2019] WASC 475; (2019) 91 MVR 101
Lyon v Read [2012] WASC 96
Matthews v Whalley [2010] WASC 165
Nabhan v Wood [2009] WASC 66; (2009) 52 MVR 273
Neves v Rogers [2013] WASC 440
Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186
Roffey v The State of Western Australia [2007] WASCA 246
Rossiter v Francisty [2005] WASC 270
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Sevelj v Roffey [2002] WASCA 20; (2002) 35 MVR 504
Sheiner v Roberts [2009] WASC 281
Wilson v Pymm [2015] WASC 449; (2015) 73 MVR 464
SOLOMON J:
This is an appeal against sentence. The appellant, Ms Knights, is a 29-year-old woman. Over a period of 12 months from 22 September 2020 to 24 September 2021, Ms Knights committed the driving offences set out at paragraph [3] below. Ms Knights was first spoken to by police on 31 October 2021 and charged for all the offences on 11 November 2021.[1]
[1] Appellant's Outline of Submissions (9 June 2022) [2].
In the Magistrates Court on 22 February 2022, Ms Knights pleaded guilty to all the charges. In relation to the offences of driving without authority contrary to s 49 of the Road Traffic Act1974 (WA) (the Act), Magistrate Atkins sentenced Ms Knights to 20 months immediate imprisonment (with eligibility for parole) and disqualified Ms Knights from holding or obtaining a driver's licence for nine months in respect of each offence, making a total disqualification period of 99 months (8.25 years). Ms Knights was also fined a total of $2,600 in relation to nine convictions for speeding.
The charges and the relevant penalties dealt with by the learned magistrate on 22 February 2022 were as follows:
Offence
Date
Time
Sentence
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
22 September 2020
12:57 pm
5 months' immediate imprisonment (cumulative)
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
6 October 2020
6:17 pm
5 months' immediate imprisonment (concurrent)
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
2 December 2020
8:11 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit between 10 and 19km/h contrary to s 11(3) of the Road Traffic Code 2000
2 December 2020
8:11 pm
$200 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
22 January 2021
11:29 am
5 months' immediate imprisonment (cumulative)
Driving in excess of the speed limit between 10 and 19km/h contrary to s 11(3) of the Road Traffic Code 2000
22 January 2021
11:29 am
$200 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
23 January 2021
12:53 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit between 20 and 29km/h contrary to s 11(3) of the Road Traffic Code 2000
23 January 2021
12:53 pm
$400 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
12 February 2021
7:14 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit by 41km/h or more contrary to s 11(3) of the Road Traffic Code 2000
12 February 2021
7:14 pm
$1,000 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
26 February 2021
8:12 pm
5 months' immediate imprisonment (cumulative)
Driving in excess of the speed limit between 10 and 19km/h contrary to s 11(3) of the Road Traffic Code 2000
26 February 2021
8:12 pm
$200 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
27 February 2021
5:48 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit between 10 and 19km/h contrary to s 11(3) of the Road Traffic Code 2000
27 February 2021
5:48 pm
$200 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
16 June 2021
1:17 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit between 10 and 19km/h contrary to s 11(3) of the Road Traffic Code 2000
16 June 2021
1:17 pm
$200 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
20 June 2021
7:28 pm
5 months' immediate imprisonment (concurrent)
Driving in excess of the speed limit by no more than 9km/h contrary to s 11(3) of the Road Traffic Code 2000
20 June 2021
7:28 pm
$100 fine
Driving without authority contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act
24 September 2021
8:26 pm
5 months' immediate imprisonment (cumulative)
Driving in excess of the speed limit by no more than 9km/h contrary to s 11(3) of the Road Traffic Code 2000
24 September 2021
8:26 pm
$100 fine
Ms Knights appeals against the sentence of 20 months' immediate imprisonment. Ms Knights does not appeal against the periods of disqualification or fines imposed for her speeding charges. I will return to the matter of Ms Knights' period of disqualification later in these reasons.
Background
The appeal notice was filed with the court on 17 March 2022, along with a bail application pursuant to cl 5 of the Bail Act 1982 (WA).
On 25 March 2022, McGrath J heard the appellant's bail application. Ms Knights was granted bail in the following terms:
1.Provide a personal undertaking in the sum of $2,000.
2.A surety undertaking in the sum of $2,000.
3.To reside at 3 Jutland Avenue, Baldivis, WA, 6171.
4.To report to the Officer in Charge of the Rockingham Police Station (Open 8.00 am to 4.00 pm, Monday to Friday) every Tuesday and Thursday between 8:00 am and 4:00pm. With the first reporting obligation to commence on Tuesday, 29 March 2022.
Accordingly, Ms Knights was in prison for 32 days from 22 February 2022 until 25 March 2022. Since that time, Ms Knights has lived in the community.
The personal circumstances of the appellant are relevant. Ms Knights is in a supportive, prosocial relationship with a Mr Cole. She has full-time care of her five-year-old daughter.
Ms Knights has, relevantly, a history of driving without authority. Before setting out that history it is necessary to note the distinction drawn by the appellant's counsel under s 49(1) of the Act. The section provides for a differential in penalty for driving without authority by reason of a 'fines suspension' under s 49(9) on the one hand (s 49(1)(b)), and, on the other, driving without authority in other circumstances, such as where a person is subject to a period of disqualification imposed by a court (s 49(1)(c)). Broadly speaking, the range of the statutory penalty for the former is less than the penalty range for the latter.
By reason of a fines suspension, Ms Knights was first disqualified from driving in 2016. In March of that year, Ms Knights was convicted of driving without authority and fined $200. She was subsequently convicted of driving without authority in September 2018. Those first two offences were for driving under a fines suspension. Ms Knights was later convicted of driving without authority when subject to a period of a court-ordered disqualification in December 2018, June 2020 and January 2021. Thus, on 22 February 2022 when she was dealt with for the charges set out above, Ms Knights had five prior convictions for driving without authority; two under a fines suspension pursuant to s 49(1)(b), and three under a court-ordered disqualification pursuant to s 49(1)(c).
The learned magistrate had regard to Ms Knights' traffic and criminal history. During the sentencing remarks, the learned magistrate noted that:
HER HONOUR: Whilst your record doesn't aggravate the offending, it certainly shows that there is a need for a penalty that will act as a personal and a general deterrence. As far as this is concerned, I note that there are previous matters where you have also been speeding and when you have chosen to drive you have again deliberately disregarded the disqualifications placed upon you.[2]
[2] Transcript, Western Australia Police v Ashleigh Rita Knights, Magistrates Court at Mandurah, 22 February 2022, 2.
Right to appeal
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made on one or more of these grounds:
(1)An appeal may be made under this Division on one or more of these grounds -
(a)That the court of summary jurisdiction -
(i)Made an error of law or fact, or of both law and fact;
(ii)Acted without or in excess of jurisdiction;
(iii)Imposed a sentence that was inadequate or excessive;
(b)That there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. This means that the ground is required to have a real, rational, and logical prospect of succeeding.[3]
[3] Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186 [17]; Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Grounds of appeal
Ms Knights originally appealed on two grounds. At the hearing of 22 July 2022, Ms Knights' counsel sought leave to amend the appeal notice and add a third ground to the notice of appeal. I granted that leave.
First, it is submitted on behalf of Ms Knights that the learned magistrate breached the first limb of the totality principle. That is, the total effective sentence of 20 months imprisonment does not reflect the overall criminality involved in all the offences viewed in their entirety.
The second ground is that the learned magistrate imposed a sentence that was manifestly excessive by virtue of the decision not to suspend the term of imprisonment.
The third ground of appeal, added on 22 July 2022, is that the learned magistrate erred by failing to consider the unexplained delay in the charging of the appellant, that being a mitigating factor.
Legal principles
The principles that govern the first and second grounds of appeal were summarised by the Court of Appeal in Kabambi v The State of Western Australia follows:
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.[4]
[4] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Before dealing with each specific ground of appeal, it is convenient to set out some of the observations contained in the authorities regarding the appropriate available sentences for multiple offences of driving without authority.
Although the sentencing discretion must be exercised afresh in accordance with each particular circumstance, there can be no doubt that, generally speaking, the courts have proceeded on the basis that multiple offences of driving while under suspension warrant a term of immediate imprisonment.
In Lyon v Read, EM Heenan J made the following observations:
As I observed in Gable v Nardini [2010] WASC 321 [33] the penalties provided for driving under suspension are designed both to be punitive and to secure public safety on the roads. Driving whilst under suspension is a particularly serious offence, especially when committed in circumstances which suggest a wilful defiance of the law: Griekspoor v Scott [2000] WASCA 419, (2000) 23 WAR 530; 550 [72]; Donnachy v Riegert [2004] WASCA 48 [120]; Arcari v Christie [2007] WASC 298 [20]; and Yuksel v Marchesani [2011] WASC 57 [29]. An extensive examination of previous sentencing decisions for the offence of driving under suspension was conducted by McKechnie J in Sheiner v Roberts [2009] WASC 281 and again in Rossister v Francisty [2005] WASC 270. A further review of these and other cases can be found in my reasons for decision in Gable v Nardini.
However, counsel for the respondents submits, and I accept correctly, that any comparative analysis of sentencing standards emerging from other cases or based on tables should be conducted with care and restraint because there is a risk of inadequately identifying the circumstances in which the particular offences were committed and the relevant personal features of each offender. Accordingly, it is not possible to approach sentencing, whether at first instance or an appeal, on the basis of any precise arithmetical assessment based on the number of offences committed or previously committed by the offender. It will always be a matter for discretion to determine whether or not a particular sentence falls within an appropriate range: Bell v Wesley [2007] WASC 264 [37] ‑ [41].
It was with these considerations in mind that I observed in Gable v Nardini [34] that it was typical for convictions for driving whilst under suspension for the fourth, sixth, seventh or eighth such offence to result in terms of imprisonment fixed at between 4 and 9 months with eligibility for parole ‑ a view endorsed and repeated in Yuksel v Marchesani and in Sheiner v Roberts. Again in Palmer v Dwyer [2010] WASC 28 [35] I observed that the pattern of sentences of imprisonment for multiple offences of driving while under suspension, including those in circumstances where there is a long history of similar prior offending, shows that sentences aggregating in the region of 10 ‑ 12 months' imprisonment are commonly imposed and seldom exceeded although there are occasions when longer sentences are imposed.[5]
[5] Lyon v Read [2012] WASC 96 [25] - [27].
Some observations in the cases referred to by EM Heenan J bear emphasis. In Rossiter v Francisty, Mr Rossiter appealed against a total effective sentence of 14 months and one-day immediate' imprisonment for a string of convictions for driving while unauthorised. McKechnie J observed that:
This Court has on many occasions emphasised the need for strong deterrence for persistent offences of driving while suspended. The reasons for this have been explained in various cases. One of the reasons is that if a person has an accident they are uninsured and that brings about all sorts of problems. More particularly, however, there is a deliberate breaching and defiance of the law in this type of offending that requires punishment.[6]
[6] Rossiter v Francisty [2005] WASC 270 [6].
The appeal was allowed, though it was not found that it was an error to impose a sentence of immediate imprisonment. Instead, it was found that the length of the sentence was beyond that which is customarily imposed. McKechnie J re-sentenced the appellant to a sentence of 8 months' immediate imprisonment.
In Sheiner v Roberts, the appellant had pleaded guilty to five charges of driving under suspension after 10 previous convictions. The appellant was sentenced by the magistrate to a total effective sentence of 18 months.[7]
[7] Sheiner v Roberts [2009] WASC 281.
McKechnie J observed that:
Continued offending by driving under suspension displays a serious disrespect for lawful authority and a disregard for the privilege of driving. In such circumstances the principle of deterrence, general and in particular personal, assume a greater prominence than in some other offences and issues of character and hardship assume a lesser prominence.
This is why it is an unusual case that repeated offences of driving under suspension will attract anything other than a sentence of imprisonment to be immediately served. This is not and should not be seen as a statement of principle but as an observation of sentencing patterns.[8]
[8] Rossiter v Francisty [15] - [16].
In his concluding remarks his Honour said:
It is difficult to precisely compare sentencing outcomes because of the variables, particularly in relation to the personal circumstances of the offender. However, as a broad rule, the schedule discloses that it is unusual for sentences for the number of offences committed by the appellant to exceed 12 months. It must always be borne in mind that a sentence should be no longer than is necessary to achieve the goals of sentencing.
Having regard to the personal circumstances of the appellant, the changes that do appear, albeit slowly, to be taking place, the fact that she has not previously been sentenced to a term of immediate imprisonment and the range of sentences imposed as disclosed in the schedule, I consider that the sentence of 18 months exceeds an appropriate sentence by such amount as to demonstrate error. It is longer than is necessary to achieve the aims of general and personal deterrence, rehabilitation and punishment.[9]
[9] Rossiter v Francisty [24] - [25].
The cases since Lyon v Read serve to reinforce that same approach.[10]
[10] Lyon v Read [2012] WASC 96.
In Neves v Rogers, the appellant appealed against a total sentence of 12 months and one-day immediate' imprisonment for six driving offences and one related offence.[11] Beech J explained as follows (omitting citations):
The penalties provided for driving without a licence or under suspension are designed to be both punitive and to secure public safety on the roads.
In the case of persistent offences of driving under suspension, there is a strong need for both general deterrence and personal deterrence. The same can be said of persistent offences of driving with a ceased licence.
Sentencing patterns from multiple offences of driving while under suspension have been examined in a number of cases. Caution is needed in considering the pattern of sentences. They should not be considered in a blunt mathematical way. Each case is sensitive to its own particular circumstances. Nevertheless, consideration of numerous previous cases reveals a relatively stable pattern of sentences at least for driving under suspension.
Convictions of driving while under suspension involving fourth, sixth seventh or eighth such offences have commonly resulted in terms of imprisonment of between 4 and 9 months.
The pattern of sentences of imprisonment for multiple offences of driving while under suspension, including those in circumstances where there is a long history of prior convictions for the same or similar offences, shows that aggregate sentences in the region of 10 to 12 months are commonly imposed.
As I have said, driving under court suspension is more serious than driving with a licence that has ceased, as driving under suspension involves an element of defiance of the court's order suspending the licence. A pattern of sentences for repeated and multiple offences of driving with a licence that has ceased is less easy to discern.[12]
[11] Neves v Rogers [2013] WASC 440.
[12] Neves v Rogers [2013] WASC 440 [38] - [43].
In that case, Beech J found that it was appropriate for the appellant to be sentenced to a term of immediate imprisonment but held that the length of the sentence was beyond the customary range for the type of offences committed. The appellant was resentenced to 7 months' immediate imprisonment.
In Lemmon v Walker-McLean, Ms Lemmon appealed against a sentence of 18 months' immediate imprisonment imposed for four offences of driving while unauthorised. These were the seventh, eighth, ninth and tenth offences committed by the appellant in an 11-month period. Tottle J said:
Driving whilst under suspension involves an element of disobedience of an order of the court that means the offence is regarded as serious. Where the offence is committed a number of times it may readily be inferred that the disobedience is wilful. Repeat offending requires weight to be given to personal and general deterrence.[13]
[13] Lemmon v Walke-Mclean [2019] WASC 475; (2019) 91 MVR 101 [17].
Tottle J upheld the appeal on the grounds that the totality principle was impinged. The appellant was re-sentenced to 12 months' immediate imprisonment.
In Jackman v Davidson & Anor, McGrath J said:
The offence committed on 16 February 2019 was Mr Jackman's fifth offence of driving without authority or while disqualified contrary to s 49(1)(a) and (3)(b) or (3)(c) of the Road Traffic Act. A term of immediate imprisonment is ordinarily imposed for repeat offenders with a discernible range of 6-8 months' imprisonment evident in appellate cases.[14]
[14] Jackman v Davidson & Anor [2019] WASC 364; (2019) 90 MVR 11 [55].
First ground - totality principle
The following statement about the totality principle was set out in Roffey v The State of Western Australia and accepted in Eriha v The State of Western Australia (citations omitted):
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual sentence. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.[15]
[15] Eriha v The State of Western Australia [2011] WASCA 167 citing Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
It has not been suggested that the second limb of the totality principle has been breached, or that the sentence is 'crushing'. Instead, it is submitted on Ms Knights' behalf that the sentence is disproportionate to the level of criminality.
Pursuant to s 49(1)(c)(ii), the maximum sentence for each of the appellant's convictions is a fine of not less than $1,000 or more than $4,000, and imprisonment for not more than 18 months. The court must also disqualify the offender from holding or obtaining a driver's licence for a period of not less than nine months and not more than three years.
I have outlined Ms Knights' personal circumstances above. It should be observed that there were, in substance, no serious aggravating factors to be considered. Though Ms Knights had several speeding convictions, only one of those convictions involved speeds that exceeded the speed limit by more than 30km/h. There is no suggestion that Ms Knights was driving under the influence of alcohol or drugs. Ms Knights did not cause damage to any other vehicle or person. It is accepted by the prosecution that Ms Knights was entirely cooperative with police.[16]
[16] Respondent's Outline of Submissions (30 June 2022) [42].
There is no doubt that, as a 29-year-old woman with a young daughter, any sentence of immediate imprisonment will have a profound impact on both Ms Knights and her family.
Having careful regard to the principles of appellate restraint, in my respectful view a total sentence of 20 months' imprisonment is beyond what is necessary to reflect the criminality of Ms Knights' offending. The sentence imposed by the learned magistrate exceeds what is necessary to achieve the aims of both personal and general deterrence and other sentencing considerations. In my respectful view, there is nothing to suggest that the appellant's offending justified a significant departure from the range identified by Beech J in Neves v Rogers[17] and McKechnie J in Sheiner v Roberts.[18]
[17] Neves v Rogers [2013] WASC 440.
[18] Sheiner v Roberts [2009] WASC 281.
In my view, Ms Knights' sentence of 20 months falls outside of the general range of sentences imposed in these types of circumstances. I therefore find that the total effective sentence was manifestly excessive and unjust. Accordingly, I shall grant leave in respect of the first ground and allow the appeal.
Second ground - suspension of sentence
The appellant accepts that a term of imprisonment was warranted and accepts that the individual sentences of 5 months' imprisonment for each charge fell within the range of sound sentencing discretion. However, it is submitted that the magistrate erred in concluding that a sentence of immediate imprisonment was the only appropriate sentencing disposition for each offence.
In substance, counsel for the appellant submitted that the circumstances of the appellant and the offending were such that suspension of the sentence was at least open as an appropriate means of punishment. Therefore, it was not possible to be positively satisfied in accordance with the requirement imposed by s 39(3) of the Sentencing Act 1995 (WA) that a less severe sentence than immediate imprisonment was not appropriate.
Ms Knights' counsel put the matter in the following way:
RAFFERTY, MR: If both are appropriate outcomes, your Honour, you can't get to immediate imprisonment because you cannot answer that question having regard to section 39(3) in the affirmative, that being that the imposition of a conditional suspended imprisonment order was not appropriate in the circumstances. So you can't have two sentences open to each other. You have to be positively satisfied that the one below is not appropriate before you get to the next one.[19]
[19] Transcript, Knights v Ward, Supreme Court of Western Australia, 22 July 2022, 29.
The appropriate test to be applied by an appellate court in relation to such a ground of appeal is well-established. In Fogg v The State of Western Australia, McLure P (with whom Mazza JA agreed) approached the issue as follows:
That issue needs to be addressed against the backdrop of the statutory framework. Under s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. It was common cause in this case that the only appropriate sentencing option was a term of imprisonment.
Section 39(2) of the Sentencing Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. The term 'appropriate' in its statutory context signifies that conclusion reached by the decision-maker after the exercise of the sentencing discretion…
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision-maker has to be positively satisfied that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust.[20]
[20] Fogg v The State of Western Australia [2011] WASCA 11 [7] - [10].
It is trite that the test expressed that way does not mean that if an appellate court is of the view that it might consider the case 'borderline', the sentencing magistrate was therefore in error. Rather, the question is whether it was open to the magistrate to conclude that suspension of the sentence was not an appropriate option.
In Wilson v Pymm, Tottle J said:
The approach to an appeal against a refusal to suspend a term of imprisonment on the ground of implied error was explained by McClure P in Fogg v Western Australia [2011] WASCA 11 at [5] - [10] per Mazza JA agreeing at [49]. A court must not order immediate imprisonment unless it is positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision-maker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error. Thus, it is for the appellant to satisfy the court that a judgment by the primary sentencing court that suspension was not appropriate was a conclusion that was not reasonably open.[21]
(emphasis added)
[21] Wilson v Pymm [2015] WASC 449; (2015) 73 MVR 464 [25].
In Rubin v Western Australia, Martin CJ (with whom Hall J agreed) explained that:
There will be cases in which different types of sentence, including those listed in s 39(2), may be reasonably open in the exercise of a sound discretionary judgment. That prospect is not excluded either as a matter of logic or in principle by the obligation imposed by s 39(3) that the sentencing judge must be positively satisfied that a less severe sentence is not appropriate. Different judges might reasonably form different views on that issue in the exercise of a sound discretionary judgment in borderline cases.
Ground 2 asserts, in effect, that error is to be implied from the failure of the sentencing judge to suspend the terms of imprisonment which he imposed. Such error may be implied if the sentences imposed are unreasonable or unjust. A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment. Notwithstanding s 39(3) of the Act, that burden will not be discharged by establishing that some lesser type of sentence was also within the range reasonably open.[22]
(emphasis added)
[22] Rubin v Western Australia [2016] WASCA 2; (2016) 75 MVR 274 [48] - [49].
In short, this ground can only succeed if it was not open to the sentencing magistrate in the circumstances to be positively satisfied that suspension of the sentence was not appropriate. The fact that an appellate court might consider that a suspended sentence may also have been within the range reasonably open, does not establish error.
The magistrate clearly turned her mind to the question of suspension, as illustrated by the following:
HER HONOUR: So as to whether or not it should be conditionally suspended, if we were talking about one or two, with your background, then it may be I could consider conditional suspension of this imprisonment, but you have reached a point where you have been completely thumbing your nose at the court and further, on numerous occasions, you have exceeded the speed limit.
When you choose to drive under suspension, you then endanger other members of community because of the insurance impact upon them, and further, on more than one occasion you are exceeding the speed limit, so you have no regard whatsoever for the safety of community generally. That is another consideration that I take into account. I have concluded that it is not appropriate for me to suspend the imprisonment imposed upon you today.[23]
[23] ts 22 February 2022, 16.
There is no doubt that driving without authority is an offence treated very seriously by the courts. There is equally no doubt that Ms Knights' persistent pattern of driving without authority and driving without regard for speed limits reflected a form of defiance of the law and a disobedience that snubs both the authority of the court and the safety of fellow road users. Ms Knights' counsel acknowledged this before the magistrate as follows:
MANERA, MR: Can I say from the outset, your Honour, that this is serious offending. Ms Knights appreciates that realistically, in the light of the number of charges and the seriousness of the charges, that there are really only two options before the court. And one is [an] immediate term of imprisonment, and the other is a suspended term of imprisonment.[24]
[24] ts 22 February 2022, 11.
The authorities referred to above make plain that ordinarily, multiple offences for driving without authority will attract a term of immediate imprisonment.[25] Ms Knights' counsel relied on a number of arguments in submitting that in addition to the mitigating factors identified by the appellant (her plea of guilty, her cooperation with police, her personal circumstances) Ms Knights' predicament should be distinguished from the cases discussed above.
[25] See Matthews v Whalley [2010] WASC 165 [31].
It was submitted that there were only three, not five, relevant previous offences. That was because, as explained above, two of the five prior offences for driving without authority contrary to s 49 of the Act were in circumstances of a fines suspension rather than a court ordered period of disqualification. In my view, that distinction is of little force. The cases referred to above do not draw that distinction. Moreover, the policy objectives referred to in those decisions might make driving while under a court ordered suspension a more egregious instance of the conduct, but the policy objectives are plainly applicable to a person who repeatedly drives without authority due to a fines suspension.
It was also submitted that it was inappropriate for Ms Knights to be sentenced to a term of immediate imprisonment where she had never had the opportunity to serve a conditional suspended imprisonment order (CSIO). Counsel submitted that a CSIO would provide Ms Knights with both the proper opportunity and proper incentive to rehabilitate herself and to curtail her pattern of offending, and that the court could not find that a suspended sentence was inappropriate until Ms Knights had been given that opportunity.
It was also submitted on behalf of Ms Knights that a CSIO would, in the circumstances, best serve the goal of personal deterrence. Counsel for the appellant said that:
RAFFERTY, MR: No sentence gives better effect to personal deterrence that a conditional - than a suspended imprisonment order.[26]
[26] ts 22 July 2022, 28.
At another point during the hearing, the following exchange took place:
SOLOMON J: Are you submitting that a suspended sentence is actually more effective in terms of personal deterrence than an actual prison sentence?
RAFFERTY, MR: In this case
SOLOMON J: Because?
RAFFERTY, MR: … There is a number of matters personal to my client relating to issues personal to her…your Honour knows what they are….So if you look at it in that context, the practical effect of a suspended [sentence] and, again, applying the general notions are in relation to the principles of sentencing, there is no better deterrent, no better personal deterrent than a suspended sentence in this type of case. I'm not saying that globally. I can't because there's no principle that would underpin that. But I'm talking about in relation to this case where she has never been given that opportunity previously.[27]
[27] ts 22 July 2022, 34 – 35.
I am not persuaded by that argument that it was not open to the magistrate to be positively satisfied that suspension of the sentence was inappropriate because Ms Knights had not previously been subject to a CSIO. Relatedly, I am also not satisfied that a suspended sentence would necessarily serve as a more effective deterrent than a term of immediate imprisonment. Ms Knights was aware of the consequences of driving without authority. She effectively drove at her convenience without regard to the law, including, on three occasions, a court ordered suspension. Ms Knights' circumstances, while undoubtedly unfortunate, are certainly not unique. There is no reason that I could find, or that the learned magistrate ought necessarily to have found, that a CSIO was a better deterrent than a term of immediate imprisonment or that a suspended sentence would better serve the interest of deterrence. The fact that a CSIO might also have been within the range reasonably open does not establish error.
Counsel for Ms Knights referred also, as a distinguishing feature, to the 'unexplained delay' in charging Ms Knights. As I understood the submission, that delay had the effect that Ms Knights engaged in repeat offending without being punished. Had she been charged at an earlier stage of the offending it is likely she would not have offended again. The delay thus contributed to, or in some way facilitated, the repeated offending. I do not accept that the delay is a circumstance that rendered the magistrate's conclusion one that was not open. This is for the same reasons that I decline to grant leave in respect of the third ground which I set out below.
In light of the authorities referred to above and the seriousness of the offending, I am unable to discern error in the learned magistrate's decision not to suspend the sentence. It was in my view open to the learned magistrate to conclude that a term of immediate imprisonment was the only appropriate sentence in the circumstances.
Accordingly, I decline to grant leave in respect of the second ground.
Third ground - delay in charging the appellant
As I have already noted, at the hearing of 22 July, counsel for the appellant sought leave to amend the appeal notice to include a third ground of appeal. That application, and the requisite extension of time, was not opposed by the respondent.
In a passing comment during oral argument, counsel for the respondent conceded that the unexplained delay would have a mitigating effect.[28] The consequence of that comment, according to counsel for the appellant, was that the State had conceded that the learned magistrate had made an express error by failing to consider a mitigating factor.
[28] ts 22 July 2022, 48.
Ms Knights' counsel drew my attention to the joint decision of McLure, Buss and Miller JJA in Scook v The Queen.[29]
[29] Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 (Scook).
That case cites the well settled proposition confirmed by the High Court Dinsdale v The Queen that 'failure to give sufficient weight to a relevant sentencing consideration only gives rise to an express appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court', and that this is a high threshold for an appellant to overcome.[30]
[30] Dinsdale v The Queen (2000) 202 CLR 321 cited in Scook [15].
In Scook, McLure JA discussed the relevant principles in relation to delay. Her Honour described instances where, in particular circumstances, delay might be mitigatory. Her Honour provided examples, such as where delay has 'contributed to a legitimate expectation that there would be no prosecution',[31] or where 'the accused is left in a 'state of uncertain suspense' which for many offenders (certainly those with prior good character) would be significantly stressful', where delay might weigh in favour of a defendant. [32]
[31] Scook [32].
[32] Scook [33].
However, I am not persuaded that the Scook decision assists the appellant's case in any significant way. McClure JA concluded that:
The authorities support the following proposition. Delay itself (mere delay) is not mitigatory. Delay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation, is mitigatory. In those circumstances, delay is facilitative or causative but not itself mitigatory. As a consequence, the reason for the delay is not ordinarily relevant. It may be so if the delay was attributable to the offender.[33]
[33] Scook [31].
I do not accept, therefore, that the court must take an unexplained delay into account when sentencing the accused, less so that that delay of itself must be considered mitigatory such that failure to have regard to the delay amounts to an appealable error.
Moreover, implicit in the ground of appeal is the contention that if Ms Knights had been charged earlier, with less offences under her belt, she would have been appropriately reprimanded and would not have offended again. I do not accept that implicit assumption. Ms Knights' record reflects a person who has repeatedly been charged for driving without authority, has been subject to various forms of fines and disqualifications, and has nevertheless continued to drive without authority. The delay in being charged did not inspire Ms Knights to be more cognisant of her legal responsibilities and public safety. It did not contribute to any rehabilitation. On the contrary, the period of delay is punctuated by increased offending.
As such, I am not persuaded that the learned magistrate erred by failing to have regard to the 'mitigatory' factor of unexplained delay and in any event, I am not persuaded that even if the magistrate had done so, the magistrate would have exercised her discretion any differently.
Accordingly, I decline to grant leave in respect of ground three.
On the disqualification
I indicated that I would return to the matter of Ms Knights' disqualification from holding or obtaining a driver's license. At first instance, the learned magistrate made the following comments on this issue:
HER HONOUR: On each of the driving under suspension matters, there is a disqualification, 11 of those, and so on each of the driving under suspension matters you have – what I will impose is the minimum disqualification, but they all run cumulative on top of each other, and that's nine months cumulative disqualification on each.[34]
[34] ts 22 February 2022, 3.
By reason of the 11 convictions for driving without authority, Ms Knights will be prohibited from driving for 99 months, or 8.25 years. I raised this with counsel for the appellant. After some exchange, and an initial application to amend the grounds of appeal to include a further ground that the 99-month period of disqualification transgressed the totality principle, counsel ultimately withdrew from any attempt to revisit that aspect of the penalty. That was because, as counsel explained by reference to the decisions in Sevelj v Roffey[35] and Nabhan v Wood,[36] the accumulation of the periods of disqualification is mandatory. The sentencing magistrate had no discretion to order the concurrency of those periods.
[35] Sevelj v Roffey [2002] WASCA 20; (2002) 35 MVR 504.
[36] Nabhan v Wood [2009] WASC 66; (2009) 52 MVR 273.
I observe in passing that the absence of such a discretion is, in my respectful view, unsatisfactory. It constrains the capacity of a sentencing magistrate or an appellate court to fashion a penalty that is just and constructive in all the circumstances. In this matter, Ms Knights resides in a semi-rural suburb, approximately an hour outside of the Perth CBD. The impact of not being able to drive in an area with less-than-comprehensive public transport services and while being the primary caregiver for a child, is substantial. In my view, in the circumstances of the appellant, a period of disqualification of more than eight years, may fairly be described as crushing, and indeed unjust.
Nevertheless, as the disqualification period is not within my resentencing discretion, it must be left undisturbed.
Resentencing
Having allowed the appeal on the first ground, it falls to this court to resentence Ms Knights.
In doing so, I take account of all the circumstances I have referred to above including the maximum penalty and Ms Knights' personal circumstances.
No complaint is made about the individual sentences imposed by the learned magistrate, and I adopt the learned magistrate's remarks and conclusions including the full 25% discount for the pleas of guilty. However, for the reasons I have set out above, I consider that the aggregate of those sentences would offend the totality principle.
In my view, a reduction of the aggregate sentences to a total effective sentence of 7 months is an appropriate reflection of the criminality and sufficient to provide personal deterrence for Ms Knights in the circumstances.
I will sentence Ms Knights to 7 months' immediate imprisonment for the offence committed under s 49(1)(a) and s 49(3)(c) of the Act on 24 September 2021. For each of the other ten relevant offences I will sentence Ms Knights to 5 months' imprisonment to be served concurrently. As Ms Knights has already served 32 days of her sentence prior to being granted bail, I shall backdate the seven months by 32 days to 16 July 2022. Pursuant to s 89 of the Sentencing Act, I shall make an order that Ms Knights will be eligible for parole. That means that the minimum period that Ms Knights will spend in custody is a total of three and a half months, which in the circumstances, means three and a half months from 16 July 2022.
As I am sentencing Ms Knights to a term of less than 12 months' imprisonment, I am required by s 35 of the Sentencing Act to give written reasons as to why no other sentencing option is appropriate. The reasons I have given above shall serve as those reasons.
Orders
Leave to appeal is granted.
The appeal is allowed.
The sentence of 20 months' immediate imprisonment imposed by Magistrate Atkins on 22 February 2022 is set aside.
The appellant is resentenced to 7 months' imprisonment, backdated to 16 July 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
18 AUGUST 2022
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