Kopp v Love
[2010] WASC 332
•17 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KOPP -v- LOVE [2010] WASC 332
CORAM: EM HEENAN J
HEARD: 5 OCTOBER 2010
DELIVERED : 5 OCTOBER 2010
PUBLISHED : 17 NOVEMBER 2010
FILE NO/S: SJA 1077 of 2010
Consolidated by order of 24 August 2010
BETWEEN: STEVEN JOHN KOPP
Appellant
AND
RICHARD LOVE
First RespondentKAREN ANNE BELL
Second RespondentWESLEY MICHAEL BIGGAR
Third RespondentNATHAN PAUL COHEN
Fourth RespondentTHOMAS SAMUEL SCUDDER
Fifth Respondent
FILE NO/S :SJA 1078 of 2010
BETWEEN :STEVEN JOHN KOPP
Appellant
AND
RICHARD LOVE
Respondent
ON APPEAL FROM:
For File No : SJA 1077 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M D WHEELER
File No :RO 4984 of 2009, PE 25443 of 2009, PE 57914 of 2009, PE 25844 of 2010, PE 43424 of 2010
For File No : SJA 1078 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D TEMBY
File No :RO 4984 of 2009
Catchwords:
Applications for leave to appeal - Appeals against sentence - Road Traffic Act 1974 (WA), s 49 - Driving under suspension - Sentences of imprisonment but suspended - Activation of suspended term of imprisonment - Seventh conviction for driving without a licence - Term of imprisonment 6 months suspended for 9 months - Seventh and eighth convictions for driving under suspension
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 7
Result:
Appeal allowed in relation to two sentences
Appeals dismissed in relation to three sentences
Category: B
Representation:
SJA 1077 of 2010
Consolidated by order of 24 August 2010
Counsel:
Appellant: Ms K A Gorski
First Respondent : Mr S M Nunn
Second Respondent : Mr S M Nunn
Third Respondent : Mr S M Nunn
Fourth Respondent : Mr S M Nunn
Fifth Respondent : Mr S M Nunn
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Fourth Respondent : State Solicitor for Western Australia
Fifth Respondent : State Solicitor for Western Australia
SJA 1078 of 2010
Counsel:
Appellant: Ms K A Gorski
Respondent: Mr S M Nunn
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Anderson v Heath [2005] WASC 253
Arcari v Christie [2007] WASC 298
Bell v Wesley [2007] WASC 264
Challis v Davison [2008] WASC 198
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donnachy v Riegert [2004] WASCA 48
Forbes v Durant [1999] WASCA 85
House v The King [1936] HCA 40; (1936) 55 CLR 499
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67
Palmer v Dwyer [2010] WASC 28
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plenty v Bargain [1999] WASCA 67
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Pustkuchen v The State of Western Australia [2010] WASCA 11
R v Tait (1979) 46 FLR 386
Rossiter v Francisty [2005] WASC 270
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Warren v Van Den Berg [2004] WASCA 32
EM HEENAN J: These proceedings are the result of two separate applications for leave to appeal by the appellant originally entitled Kopp v Love, Bell, Biggar, Cohen & Scudder (SJA 1077 of 2010) and Kopp v Love (SJA 1078 of 2010). Both applications for leave to appeal were filed in the registry on 6 August 2010. SJA 1077 of 2010 sought leave to appeal from sentences imposed by his Honour, Mr M D Wheeler, SM in the Perth Magistrates Court on 12 July 2010 in respect of five separate offences. The details of those offences and the individual sentences will be set out more fully later. For the present, it is enough to say that the combined effect of those five sentences each involving a period of imprisonment with eligibility for parole but with some cumulative and some concurrent was that the appellant was sentenced to a total effective term of 15 months' imprisonment and his motor driver's licence was disqualified for a period of 18 months cumulative upon other periods of disqualification.
The application for leave to appeal in SJA 1078 of 2010 was in respect of a single sentence imposed by his Honour, Mr D Temby, SM, in the Rockingham Magistrates Court on 3 June 2009 for driving a motor vehicle while not being authorised to do so because of a licence suspension. For that offence, the appellant was sentenced to a period of imprisonment of 12 months but suspended for 15 months. In addition, his motor driver's licence was suspended for 12 months cumulative upon earlier periods of disqualification.
As is apparent, therefore, despite the sequence of numbering of the appeals, SJA 1078 of 2010 relates to the earlier sentences imposed on 3 June 2009 and the other application relates to sentences imposed 13 months later, on 12 July 2010.
SJA 1078 of 2010 was commenced after the time for seeking leave to appeal had expired. SJA 1077 of 2010, by contrast, was commenced within time. The two separate applications came before Jenkins J on 23 August 2010 when her Honour granted an extension of time within which to appeal on SJA 1078 of 2010 and directed that SJA 1078 of 2010 be consolidated with SJA 1077 of 2010 and that the consolidated appeals be known, from then on, as SJA 1077 of 2010. Her Honour also directed that the consolidated applications for leave to appeal, and any appeal if leave were granted, should be heard at the same time.
The consolidated applications were heard on 5 October 2010 and at the end of that hearing I gave leave to appeal in each case and directed that both appeals should be allowed. I directed that the period of 12 months' imprisonment imposed on the appellant on 3 June 2009, which had been suspended, should be varied to 9 months' suspended imprisonment and that the 3 months' imprisonment cumulative which had been imposed on 12 July 2010 should stand but be made concurrent instead of cumulative with earlier periods of imprisonment. The effect of those orders and the terms of imprisonment imposed by this resentencing is that the appellant is sentenced to a period of 9 months' immediate imprisonment, to date from 12 July 2010, and is eligible for parole. These orders involved alterations to only two of the sentences which had been imposed in the Magistrates Courts.
On 5 October 2010, before making these orders, I gave short reasons for these decisions but indicated that more detailed reasons would follow. These are my full reasons for those decisions.
At the time of this hearing, the appellant was in custody serving the sentences which had been imposed on 12 July 2010. The effect of his successes in these appeals will mean that the period of imprisonment which he is required to serve will be shorter and that he will become eligible for parole sooner.
History of offences
The first conviction and sentence occurred on 3 June 2009 in the Magistrates Court of Western Australia held at Rockingham before his Honour, Magistrate Temby. On his plea of guilty the appellant was convicted of driving a motor vehicle registered number 1DAN…, on a road, namely Patterson Road, whilst not being a person authorised by Pt IVA of the Road Traffic Act1974 (WA) and whose authority to drive was at the time suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act. At this hearing he was also charged with driving in excess of the speed limit at the same time and place and also entered a plea of guilty to that charge.
The facts read to the court by the prosecuting officer were that at 3.25 pm on 10 April 2009 the appellant drove his vehicle on Patterson Road in Rockingham. He was observed by police to be travelling in excess of the speed limit and a laser trained on his vehicle recorded him as driving at 72 km per hour in a 60 km per hour zone. The allegation advanced by the prosecution was that he was driving at 70 km per hour in that area. At the time the appellant's licence was under suspension as a result of an order of the Magistrates Court on 12 December 2008 and that suspension remained in effect until 12 September 2009. The record showed that this was the fourth conviction (or sixth conviction if counting fines suspensions) for the appellant for driving while under suspension.
At that hearing the appellant was represented by duty counsel who entered a plea of mitigation on his behalf, stressing to the court that he had informed the appellant of the seriousness of his position and submitting that if there were any sentence of imprisonment being contemplated by the court it should be suspended. The details of the appellant's employment and personal history were given. The record showed that the appellant had a number of other convictions for road traffic offences and breaches of a violence restraining order to a degree which indicated a history of disregard for orders of courts. In imposing the sentences his Honour said:
Now, we have reached the point today that you've committed so many recent offences in such a short period of time, and it's not just driving under suspension, it's driving under fine suspension as well. You are a person who doesn't believe that when the authorities say something is the way it is that, that really should have any adverse impact on you.
There are breaches of violence restraining orders; you don't comply with court direction. So we have reached the point today, and, as the sergeant says, the only thing that exercises my deliberations today is whether you should do immediate gaol time, or whether the gaol time should be suspended for a period of time to see if you can remain offence‑free in the community. If I was a betting man, and I'm looking at your record, I would say you are a hopeless case of staying out of trouble for a period of time that I would suspend the imprisonment.
On your record, you don't stay out of trouble for any length of time. You continue to find ways to get into trouble. However, that opportunity has never been afforded to you, suspended imprisonment or not. I'm going to give you one last chance today. If you're not up to it, you will send yourself to gaol, do you understand that?
APPELLANT: Yes, your Honour.
HIS HONOUR: For speeding, you're fined $150, $114.20 in court costs. For driving under suspension, you're sentenced to 12 months' imprisonment with parole eligibility suspended for 15 months. That 12 months' gaol is hanging over your head like a little black cloud for the next 15 months, and if you muck up it'll rain all over you and you'll go to gaol.
His Honour then went on in a similar vein to stress the gravity of the situation in which the appellant was placed and how if he committed any further offence of any kind in the next 12 months which carried the possibility of a sentence of imprisonment this suspended sentence of imprisonment would be triggered and, as an absolute certainty, he would then go to gaol.
In these present appeals the appellant seeks leave to appeal from that sentence on grounds that:
(1)the sentence of 12 months' imprisonment suspended for 15 months was manifestly excessive having regard to:
(i)the circumstances of the offence;
(ii)the appellant's plea of guilty;
(iii)the appellant's personal circumstances;
(iv)the appellant's record; and
(v)sentencing standards.
The second group of offences
The second series of offences follow convictions of the appellant in the Perth Magistrates Court on 12 July 2010. There were then five charges before his Honour, Magistrate Wheeler, being RO 4984/09; PE 25443/09; PE 57914/09; PE 25844/10; and PE 43424/10. On three of those five charges the appellant had previously been before the Magistrates Court on or about 17 May 2010 and had entered pleas of guilty before another magistrate, his Honour, Magistrate Calder SM. On that occasion Mr G Calder remanded the appellant in custody for a pre‑sentence report, evidently intending that, when the pre‑sentence report became available, he would proceed to impose sentences for those offences. As it turned out, however, his Honour, Magistrate Calder was not available on 12 July 2010 when the appellant was brought up on remand ‑ evidently his Honour was then listed for sitting in another jurisdiction. So it came about that on those first three offences to which the appellant had pleaded guilty and for which he had been in custody on remand, he came before his Honour, Magistrate Wheeler. By then there were two fresh charges which had been laid and these were listed for hearing before Magistrate Calder that day.
After some initial consideration of whether or not the appellant should be further remanded so that the first three offences could be dealt with by his Honour, Magistrate Calder, the appellant indicated through his counsel that he preferred to have all matters dealt with together that day and, thereupon, his Honour, Magistrate Wheeler, assented to that course. The two additional charges were read and pleas of guilty entered. The six charges for which the appellant was sentenced on this occasion were:
(1)PE 25843/10. At 5.45 am on 26 March 2010 the appellant was driving a 750 cc motorcycle on Leach Highway, Welshpool, when observed by the police to be travelling in excess of the applicable speed limit. A radar was trained on his vehicle and a speed of 111 km per hour was detected with the prosecution alleging a speed of 109 km per hour in an 80 km per hour zone.
(2)PE 25844/10. At the same time and place, that is on 26 March 2010 on Leach Highway, Welshpool, having been stopped for the speeding offence, the police ascertained that the appellant was not authorised to drive a motor vehicle, his licence having been suspended by the Perth Magistrates Court on 27 August 2009 for 12 months. At the time the appellant also had 29 outstanding fines suspensions.
(3)PE 43424/10. At 7.35 pm on 15 May 2010 the appellant drove a Hyundai vehicle on Spencer Road, Langford, while he was currently under disqualification.
(4)PE 57914/09. Gaining a benefit by fraud. On 17 September 2009 at about 4.30 pm the appellant attended Cash Converters on Abernethy Road in Belmont. He produced a Tom‑Tom global positioning system to secure a loan of $70, explaining that it was his own property. It was later discovered that the GPS had been stolen. The accused was apprehended by the police, and made a video record of interview admitting the offence.
(5)PE 25443/09. No authority to drive, driving while suspended on 8 January 2009. For this offence the appellant had been sentenced on 27 August 2009 to 6 months' imprisonment suspended for 9 months, but because he was in breach of the terms of that suspended imprisonment order he came up to be dealt with for this offence again on 12 July 2010.
(6)RO 4984/09. Driving without authority while suspended at Rockingham on 10 April 2009. This was the offence resulting in the suspended imprisonment order of 12 months, suspended for 15 months, made by the court in Rockingham on 3 June 2009 but, because of more recent offences constituting breaches of the terms of this suspended term, the appellant came up for sentence for that offence again on 12 July 2010.
To put these various offences in chronological order, the position can be summarised as follows.
(1)On 8 January 2009 the appellant committed an offence of driving without authority to drive while being under suspension. He was sentenced in the Perth Magistrates Court on 27 August 2009 to 6 months' imprisonment suspended for 9 months.
(2)On 10 April 2009 the appellant committed an offence of driving without authority to drive and whilst being under suspension. This was after the offence of 8 January 2009 but before the sentence for that offence on 27 August 2009. In the Perth Magistrates Court on 3 June 2009 the appellant was sentenced to a term of 12 months' imprisonment suspended for 15 months for this offence.
(3)On 17 September 2009 the appellant committed an offence of gaining a benefit by fraud. This breached the terms of the suspended imprisonment orders on 3 June and 27 August 2009. On 10 December 2009 in the Perth Magistrates Court the appellant was fined for breaching the orders but the suspended imprisonment orders were continued.
(4)On 26 March 2010 and 15 May 2010 the appellant committed further offences of driving without authority to drive and while being under suspension. These offences breached the terms of the suspended imprisonment orders of 3 June and 27 August 2009, both of which had been confirmed and continued on 10 December 2009.
(5)On 12 July 2010 his Honour, Magistrate Wheeler, in the Magistrates Court at Perth sentenced the appellant as follows:
| Number of charge | Description of sentencing | Sentence |
| RO4984/09 | Re-sentencing following breach of suspended imprisonment order of 3 June 2009 for driving a motor vehicle with no authority to drive on 10 April 2009 | 12 months' imprisonment. Eligible for parole. |
| PE25443/09 | Re-sentencing following breach of suspended imprisonment order of 27 August 2009 for driving with no authority to drive on 8 January 2009 | 6 months' imprisonment concurrent. Eligible for parole |
| PE25844/10 | Driving with no authority to drive on 26 March 2010 | 3 months' imprisonment cumulative. Eligible for parole. 9 months licence disqualification cumulative. |
| PE43424/10 | Driving with no authority to drive on 15 May 2010 | 6 months imprisonment concurrent. Eligible for parole. 9 months licence disqualification cumulative. |
| PE57914/09 | Resentencing following breach of community based order of 10 December 2009 for an offence of gaining a benefit by fraud on 17 September 2009 | 1 month's imprisonment concurrent. Eligible for parole. |
These were not the only matters dealt with by the learned magistrate on 10 December 2009 but it is unnecessary to mention other offences which resulted in fines being imposed. At the time of the sentencing the appellant had been in custody from 17 May 2010 until 12 July 2010 for the preparation of the pre‑sentence report. He had, also, pleaded guilty to each of the charges against him and, at each time, from the outset.
His Honour was clearly faced with a difficult task in sentencing the appellant for this range of offences, including resentencing for the breaches of the terms of the suspended imprisonment orders and the community based order. His Honour gave detailed reasons, which include the following passage:
You come before me to be sentenced on a number of matters, and I also have a separate - I've got to deal with these fresh matters, if I can call it that way, and I've also got to sentence you on the breach of suspended imprisonment order that you're on under section 80 of the Sentencing Act.
I'm required to imprison you unless circumstances have arisen or have become known since the sentence were imposed - those words are critical - that would make it unjust to do so. I see no such circumstances. I also need to look at the circumstances in your record. You have prior driving under suspension convictions. You have fines suspension, which I disregard; I just note that it's there.
You were given a- in August 2008 you were convicted of driving under suspension for the first time. You got the minimum penalty. Then on 29 October, not much later, you got a second offence and got the minim penalty, and then you committed a third offence - well, no, just before you got dealt with that last one, but it came up, and you got the minimum penalty again. So there's three in a very short space of time.
That last one was coupled with a drink driving charge as well. Then the court got sick of you, quite frankly. On 3 June 2009, you were convicted of an offence committed on 10 April whilst under suspension for those earlier charges, and you received a suspended term of imprisonment of 12 months, suspended for 15 months. That was not appealed, and that sentence starts - stands, I should say.
Notwithstanding that, you were imprisoned again - sorry, convicted again on your own plea and suspended, and ordered to serve six months' imprisonment, suspended for nine months. That was because - you were not instantly breached because you didn't breach it because that matter occurred whilst you were waiting to go to court on the previous one you got. So you just keep driving under suspension.
So therefore you're on two suspended terms of imprisonment orders at the same time. You were then breached on those orders because you committed this fraud offence for which I'm also I'm also going to deal with and in September 2009 that was a gaolable offence. It did breach the suspended term of imprisonment except, of course, I presume the court took into account the fact that it was a disparate type of an offence to that for which you were placed on a suspended term. I assume that.
And you were breached and you were slapped with a wet lettuce leaf, which is probably appropriate under the circumstances because it was such a (indistinct) offence, but you got minor fines and the order to continue, and then you go and breach them again. So you got given a second - and you weren't bright enough to realise what a chance you've been given and you weren't able to control your personal circumstances enough to stop yourself driving.
Notwithstanding, you got give a real lucky break when you came before the court in December, and you've done it again. 26 March, not only a driving under suspension, you're speeding 109 in an 80 zone, and then despite all that - through all that, these charges are pending and you drove under suspension again on 15 May. That's just unbelievable really, but you've done it.
Now, I appreciate the totality principle and I appreciate what the courts have said, but now I'm going to have to call in those - it's time to call them in, those suspended - breaches of SIO, and I will look at totality. They're all separate and distinct offences and with strict sentencing principles they accumulated all on top of each other, but applying totality and looking at your personal circumstances, and taking into account that you spent some time in custody in remand with these matters to get to today, I will make some of them concurrent when you don't really deserve it.
On the breach of the SIO, the suspended term imposed on 3 June, which is continuing, you will be imprisoned for 12 months, you will be eligible for parole. That will be - well, not the total accumulation but almost - eligible for parole. In respect to the other suspended term of imprisonment imposed on 27 August 2008, that's six moths, that will be made concurrent simply applying the totality really because separate and distinct at different times. You're eligible for parole on that.
Now, the (indistinct) for today - you come before the court today, it's the speeding on the motorcycle in Welshpool. It's such a flagrant breach. I'm going to impose a small cumulative term. I appreciate the totality is going to be 15 months. So be it. It's over a substantial period of time, a substantial number of actions.
In respect to the speeding you will be fined $400. In respect to the driving under suspension on the motorcycle on that occasion - there's no justification for so doing - you will be imprisoned for three months. That will be cumulative, eligible for parole. That's the total amount of accumulation, and you will be disqualified from holding or obtaining a driver's licence for nine months and that operates cumulative on the current disqualification, the fact you're now under.
Then the last one, whilst that was committed - whilst you were waiting to go to court on these ones, I will make it a concurrent term apply principles of totality and it used to be called 'enough is enough.' It's the same thing, it is 'enough is enough.' You will be imprisoned for six months' concurrent on that, eligible for parole, and you're disqualified for nine months' cumulative. There will be no costs on these matters because you're going into prison, and that's taken into account the time you've spent in custody as well.
In respect to the breach of the community service order, I would normally impose a fine because it's relatively minor one, but you're doing a substantial amount of imprisonment anyway, and that will be probably - I'm going to impose a one-month imprisonment concurrent, eligible for parole on that and there's a fine of $100, costs of $119.20 on the breach.
Now, it won't be backdated because -well, really the suspended terms of imprisonment only becomes - now that I'm coming to sentence you, you have not spent time in custody on that. I've already taken into account the time you've spent in custody in concurrency and a small cumulative term for driving under suspension. So all up it's 15 months, eligible for parole. Mr Kopp, please stand down.
The overall effect of the sentences imposed on 12 July 2010 is that the appellant was sentenced to immediate terms of imprisonment totalling 15 months with eligibility for parole together with further cumulative periods of licence suspension and disqualification. He has been in custody serving those sentences since and was in custody at the time of the hearing of these appeals.
As appears from his Honour's reasons, the period during which the appellant was in custody on remand was not taken into account in relation to the 12‑month term activated from the earlier conviction but was taken into account in relation to concurrency by other offences and for the short cumulative term of 3 months for driving under suspension.
From those sentences the appellant now seeks leave to appeal on the following grounds:
(1)The sentence of 12 months' imprisonment on charge number RO 4984/09 was manifestly excessive having regard to:
•the circumstances of the offence;
•the appellant's plea of guilty;
•the appellant's personal circumstances;
•the appellant's record; and
•sentencing standards.
(2)An aggregate sentence of 15 months failed to adequately take into account totality having regard to:
•the circumstances of the offences;
•the appellant's pleas of guilty;
•the appellant's personal circumstances;
•the appellant's record;
•the time the appellant spent in custody on remand; and
•sentencing standards.
Leave to appeal
By s 9(2) of the Criminal Appeals Act 2004 (WA) a 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'. As explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487, the ordinary meaning of those words in that context means that any proposed ground of appeal must have a rational and logical prospect of succeeding or, in other words, that it would not be irrational, fanciful or absurd to envisage it succeeding. In reliance upon that test, counsel for the respondents submits that none of the appellant's grounds of appeal has a reasonable prospect of succeeding and that leave to appeal ought not be granted. That submission also draws upon the established rule that any appeal court considering an appeal from a sentence imposed must fully recognise the discretionary character of the sentencing function and should accord to sentencing judges a wide measure of latitude: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J). And, on this basis, the respondents rely on the well‑established proposition that an appellate court should only vary a sentence if it can be shown that the sentencing judge was in error in the exercise of discretion in sentencing the offender. This may be established if it emerges that the judge acted on a wrong principle, allowed extraneous or irrelevant material to affect the sentencing decision, misunderstood the facts or failed to take into account some material consideration.
Even then, if no such error is specifically identifiable, an appeal can succeed if it is apparent that when considering the offence and the sentence in the whole of the circumstances, the sentence is unreasonable or plainly unjust leading to an inference that there has been some latent failure properly to exercise the sentencing discretion: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325, 339 ‑ 340; R v Tait (1979) 46 FLR 386, 387 ‑ 388 and House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505. These authorities also stand for the well‑known proposition that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised the discretion.
As a further submission relating to the special circumstances of this case, counsel for the respondents submitted that particular care should be taken when an appeal court is asked to vary the sentencing discretion of a Magistrates Court which regularly hears complaints for road traffic matters and which is in a good position to judge the relevant culpability of different offenders: Plenty v Bargain [1999] WASCA 67 [81]; Forbes v Durant [1999] WASCA 85 [15] and Warren v Van Den Berg [2004] WASCA 32 [29].
I accept, with respect, the submissions of counsel for the respondents on these matters of principle, but it is still necessary that I should apply the principles emerging from the authorities to the facts and circumstances of this case and to the sentences imposed by the learned magistrates having regard to the pattern of sentencing for these types of offences which by now, as subsequent authorities which are yet to be discussed will reveal, have established a settled pattern or range of sentences for these types of offences in recent years. In doing so, I am satisfied that each of the grounds of appeal raises reasonably arguable prospects of success and, for that reason, that leave to appeal in both consolidated appeals should be granted and upon each of the proposed grounds of appeal advanced by the appellant.
The appellant's record and personal circumstances
Before 3 June 2009, the appellant had been convicted on five occasions of offences against s 49(1)(a) of the Road Traffic Act (twice for fines suspension). Each breach attracted a penalty for which imprisonment could be imposed. Consequently, the conviction of 3 June 2009 was the appellant's sixth conviction for driving without authority and whilst under suspension.
As appears from the earlier chronology, the appellant was also convicted on 27 August 2009 of another offence of driving whilst under suspension (PE 25443/09) but which had been committed before the charge dealt with on 3 June 2009. That, therefore, was the appellant's seventh conviction for driving without authority and whilst under suspension and for this he received a 6‑month term of imprisonment suspended for 9 months.
The offences dealt with on 12 July 2010 included two further convictions for driving without authority and whilst under suspension bringing to a total of nine convictions for offences under s 49(1) although two of these were the result of fines suspensions. On 12 July 2010 his Honour expressly disregarded the convictions resulting from fines suspensions so, in practical terms, his Honour treated the two offences of driving whilst under suspension then before him as being the sixth and seventh convictions of the appellant for that offence.
The existence of these numerous earlier offences is not an aggravating circumstance - Sentencing Act 1995 (WA) s 7(2)(b) and (c) - but the effect of a poor criminal record may be that an otherwise appropriate sentence for the offending will not be reduced because of the mitigating circumstances of good character - Griekspoor v Scott (2003) 23 WAR 350 [71] (Roberts‑Smith J).
The personal circumstances of the appellant were that at the time of these offences he was aged 31 and 32 years having been born in September 1977. He was by occupation a welder/labourer who had a history of cannabis use from the age of 17 years and had been employed in a variety of manual or labouring occupations from the age of about 17 years. He was significantly in debt and had a history which included taking anti‑depressant medication. He has been independent for many years and had expressed regret for his offending behaviour. He accepted full responsibility for his actions.
Sentence imposed on 3 June 2009
This was the sentence of 12 months' imprisonment suspended for 15 months. It was imposed when the appellant had entered an early plea of guilty and had expressed remorse. It was accompanied by a related offence of speeding and, for sentencing purposes, was treated as his third conviction for driving without authority. The prescribed maximum penalty for a first offence for driving under suspension is a fine of varying amounts and imprisonment for not more than 12 months in addition to any period of licence disqualification. For each of the subsequent offences of driving under suspension the maximum penalties were fines, of greater amounts, and imprisonment for not more than 18 months.
Before the repeal of the transitional provisions contained in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) the maximum penalty which would actually be imposed for a second or subsequent conviction for this offence was 12 months' imprisonment: Mason v Morrison [2004] WASCA 181. However, all these sentences were imposed after the repeal of the transitional provisions but in The State of Western Australia v BLM [2009] WASCA 88, Wheeler and Pullin JJA (Owen JA agreeing) said that the effect of the Amendment Act required:
[A] sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act [7].
On this basis, counsel for the appellant submitted that the imposition of a period of 12 months' imprisonment (notwithstanding that it was then wholly suspended) on 3 June 2009 was tantamount to the imposition of the maximum penalty which could be imposed for such a subsequent offence and that this was excessive having regard to the circumstances of the offence, the early plea of guilty and to the remorse shown by the appellant. Furthermore, in reliance on a pattern of sentencing said to emerge from authorities yet to be mentioned, it was submitted that the term of 12 months was excessive in the circumstances.
The submission for the appellant was that a pattern of recent cases considering sentencing for driving without authority whilst under suspension for offenders having a history of multiple previous convictions establishes that there is a basic range of about 4 to 12 months for an offence of driving under suspension and that 12 months' imprisonment results only in the most serious cases and that a term of 9 months or more is rarely imposed for an individual offence even where the offender has a substantial history of multiple previous convictions for similar offences: Sheiner v Roberts [2009] WASC 281 and McDonald v White [2007] WASCA 213. In the latter case, the Court of Appeal held that a sentence of 5 months' imprisonment was appropriate for an individual offence of driving under suspension taking into account:
(a)a reduced discount for a guilty plea due to a lack of remorse;
(b)that the appellant had not previously been subject to a term of immediate imprisonment;
(c)that the appellant had nine previous convictions for driving under suspension and previous drink‑driving convictions; and
(d)the offence was aggravated by offences of exceeding 0.08% blood alcohol level, reckless driving and failing to stop.
It is, of course, the case that the fact that a term of imprisonment was suspended does not affect the suitability of the length of term imposed because no suspended term of imprisonment is to be imposed unless it is appropriate for the offender to be sentenced to immediate imprisonment for that term: Sentencing Act s 76(2).
These submissions concerning the established range of sentences for such offences must, of course, take into account variations in the circumstances of the particular offences and of the several offenders. Nevertheless, the pattern contended for by the appellant is well‑established and I have also referred to it in earlier cases including Palmer v Dwyer [2010] WASC 28 - although it is not without exceptions. One must always remember that sentencing is an art rather than a science and that there must be latitude for different opinions which can affect significantly the outcome: Bell v Wesley [2007] WASC 264 [37] ‑ [41] and that an appeal court should not approach an appeal with regard to sentence as any form of arithmetical or mathematical assessment. In this type of case, there must be, as counsel for the respondents submitted, a recognition that a major sentencing object for such an offence is to deter the offender personally in order to protect the public: Donnachy v Riegert [2004] WASCA 48 [120] and Arcari v Christie [2007] WASC 298.
Considering the sentence imposed on 3 June 2009 in the light of these authorities, it is significant to note that the appellant had not previously been sentenced to any term of imprisonment, suspended or otherwise, for his previous offences of driving without authority and while under suspension. No doubt this was a powerful influencing factor in causing the learned magistrate to suspend the sentence of imprisonment which he then imposed. However, I do consider that a period of 12 months' imprisonment for the first occasion in which such an offender is sentenced to imprisonment for this kind of offence is outside the usual range and excessive. Although this offending conduct was accompanied by speeding and the speeding was not such as to result in any allegation of reckless or dangerous driving and there was no collision, injury or damage involved.
In all the circumstances, I consider that a sentence of imprisonment in the region of 6 to 9 months would have been justified if suspended but that a term of imprisonment longer than 9 months would, for this offence, be excessive. It follows that I consider that the appeal against the sentence of imprisonment of 12 months imposed on 3 June 2009 but then suspended for 15 months should be allowed. It is necessary that the appellant should be re‑sentenced in relation to that offence and I consider that, consistently with the authorities and having regard to the circumstances, that a proper sentence is 9 months' imprisonment suspended for a period of 15 months dating from 3 June 2009. I consider that orders setting aside the sentence imposed by his Honour and substituting the sentence which I have outlined should be made.
Sentencing on 12 July 2010
As a result of my conclusion that the suspended sentence of 12 months' imprisonment imposed on 3 June 2009 was excessive, it follows that the re‑sentencing of the appellant for that offence because of breach of the terms of the terms of the suspended imprisonment order resulting in a term of immediate imprisonment for 12 months imposed on 12 July 2010 is necessarily excessive. By then, however, the appellant had committed a fifth offence of driving whilst under suspension and was before the court on pleas of guilty to sixth and seventh convictions for the same offence together with offences of breaching a CBO for which the learned magistrate considered that sentences of immediate imprisonment were necessary.
I have previously set out the five offences which were dealt with by the learned magistrate on 12 July 2010 and the individual sentences imposed which, where involving sentences of immediate imprisonment, resulted in some of them being concurrent and one cumulative upon the 12‑month initial term.
At the time of this sentencing, the appellant had been in custody for almost 2 months on remand and had pleaded guilty to all of the charges at the earliest opportunity. That was a mitigating factor which needed to be taken into account.
When deciding upon the disposition of sentences for these five further offences, the learned magistrate was obliged to consider firstly, the appropriate sentence to be imposed for each offence having regard to the pattern of sentencing emerging from the authorities and the conduct of the offender and then, because of the multiplicity of the offences, to ensure that the totality of sentencing did not, by accumulation or otherwise, become crushing notwithstanding the number and nature of offences involved. The need was to impose an aggregation of sentences appropriate for each offence but in a way which is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (307 ‑ 308); Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 624 and Pustkuchen v The State of Western Australia [2010] WASCA 11 [36].
In the circumstances which applied on 12 July 2010, the total effective sentence of 15 months' immediate imprisonment was in addition to the almost 2 months which the appellant had by then served in custody on remand producing the effect that the period of imprisonment which the appellant would be required to serve amounted to almost 19 months (or 18 1/2 months if he were to be eligible for parole and granted parole when first so eligible).
Counsel for the appellant referred to the decision of the Court of Appeal in Moody v French [2008] WASCA 67 where a sentence of 21 months' imprisonment without parole was reduced to 12 months' imprisonment with parole for two offences of driving under suspension. That was a case where the offender had nine previous convictions of no authority to drive at a time when he was suspended, also had charges of drink‑driving and a history of previous convictions for exceeding prescribed blood alcohol levels and where the offences breached the terms of a suspended imprisonment order for another offence. In Palmer v Dwyer, a term of 24 months' imprisonment was reduced to 13 months where there had been three earlier offences of driving without authority and while under suspension and two new offences which themselves constituted breaches of a suspended imprisonment order and where there were nine previous convictions for no authority to drive. In Challis v Davison [2008] WASC 198, a term of 12 months was reduced to 8 months' imprisonment for an offender with two previous convictions for driving without authority while suspended and seven previous convictions for driving without authority being under fines suspensions and where the court was dealing with four further offences of driving without authority while suspended. A 16‑month imprisonment order was reduced to 7 months in total in Anderson v Heath [2005] WASC 253 in a case involving three offences of driving whilst under suspension where the offender had seven previous convictions for driving under suspension and there were associated related offences of providing a false name and having an unlicensed vehicle. In Rossiter v Francisty [2005] WASC 270, a sentence of 14 months' imprisonment was reduced to 8 months' imprisonment for three offences of driving under suspension for an offender who had seven previous convictions for driving under suspension, where the offences breached a suspended imprisonment order for an earlier similar offence and where there were associated offences.
From this analysis, I have considered that a 6‑month term of imprisonment imposed by the learned magistrate in relation to charge PE 25443/09 with eligibility for parole was within the range of sentencing open to his Honour and that no error has been demonstrated in relation to that sentence. Similarly, in relation to the 6‑month term of imprisonment imposed for charge PE 43424/10 with eligibility for parole and I do not consider that any error has been shown in relation to the imposition of that sentence. Both these last two sentences were to be served concurrently with the term of 12 months which had been imposed in relation to RO 4984/09 and which I now consider should be reduced to 9 months' imprisonment.
This then brings me to the offence on charge PE 25844/10 of driving without authority and whilst unlicensed on 26 March 2010. For this, his Honour imposed a sentence of 3 months' imprisonment which I consider was, in all the circumstances, within the range and otherwise appropriate to the seriousness of this offending. However, his Honour directed that that should be cumulative upon the earlier sentence of 12 months' imprisonment and by that cumulation I consider that the sentence infringed the principle of totality and became excessive amounting to the 15‑month period. If that 3‑month sentence were to be added to the reduced sentence of 9 months which I myself have considered appropriate on charge RO 4984/09, that would produce a total effective sentence of 12 months which, in my view, is still beyond the range of the pattern of sentencing appearing from the authorities which I have been examining. It follows that I consider that this 3‑month sentence, correct in itself, should not be made cumulative upon the other sentence but rather should be ordered to be concurrent.
Summary
Accordingly, I consider that each of the sentences imposed on the appellant by the learned magistrates dealing with his cases on 3 June 2009 and 12 July 2010 were within the range of sentences appropriate for the offences of which he had been convicted, except for the sentence of 12 months' imprisonment suspended for 15 months imposed on 3 June 2009. I have concluded that that sentence should be reduced to a period of 9 months' imprisonment suspended for 15 months and to date from 3 June 2009.
The immediate effect of that conclusion is that the re‑sentencing for that offence by the second learned magistrate on 12 July 2010 proceeded on an erroneous basis that 12 months' imprisonment was the correct disposition for that offence when first imposed. Of course, the learned magistrate dealing with the matter on that occasion had no alternative but to proceed on that basis but now that leave to appeal has been granted from that earlier sentence and the appeal allowed, this court must look at the matter in the light of the present circumstances.
From this new perspective, it is apparent that no more than 9 months' immediate imprisonment could have been imposed on the re‑sentencing for that offence when the appellant came before the court on 12 July 2010. Having regard to the extent and nature of the appellant's offending and associated offences, I consider that any magistrate dealing with the matter on that occasion would have been right to impose the whole of that sentence and it is for that reason that, although I am allowing the appeal from the 12‑month sentence imposed on 12 July 2010, I consider that the appellant should be sentenced to 9 months' imprisonment for that offence.
As for the other sentences, I have already said that I consider each to be justified as individual sentences but that it is necessary to have regard to the principle of totality. All of these other sentences were imposed on 12 July 2010 and of the four additional sentences three were directed to be served concurrently with the first term.
The fourth sentence, however, was ordered to be served cumulatively. This was for the offence of driving without authority on 26 March 2010 for which a 3‑month period of imprisonment was imposed cumulatively upon the 12‑month period which I have indicated should be varied. I consider that this 3‑month period of imprisonment should be served concurrently with the reduced period of 9 months which I have imposed as a result of re‑sentencing for the orders initially made on 3 June 2009. That brings the total effective sentence to 9 months' imprisonment.
It follows that I would allow the appeal from the sentences imposed on 12 July 2010. In relation to the sentence of 12 months' imprisonment then imposed for the breach of the suspended imprisonment order of 3 June 2009 for the offence which had been committed on 10 April 2010, I would substitute a period of 9 months' imprisonment dating from 12 July 2010. In relation to the sentence of 3 months' imprisonment imposed on 12 July 2010 for driving without authority on 26 March 2010, I would leave the 3 months' imprisonment then imposed standing but direct that that sentence be served concurrently with the reduced period of 9 months which I have substituted.
The result is that the appellant will be liable to serve a total of 9 months' imprisonment as from 12 July 2010 and be eligible for parole.
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