Mason v Morrison - [2004] WASCA 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MASON -v- MORRISON [2004] WASCA 181

CORAM: MILLER J

HEARD: 5 AUGUST 2004

DELIVERED : 13 AUGUST 2004

FILE NO/S: SJA 1036 of 2004

MATTER :Justices Act 1902

BETWEEN: GARY SHANE MASON
Appellant
AND
ARTHUR EDWARD MORRISON
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR K FISHER SM
File Number             :  CO 4 & CO 5 of 2004

Catchwords:

Appeal - Driving offences - Tenth offence of driving under the influence of liquor - Twelfth offence of driving whilst under suspension - Sentence of imprisonment suspended by Magistrate - Whether a suspension appropriate - Whether mistake in sentencing process calls for resentencing - Appropriate sentences

Legislation:

Road Traffic Act 1974 (WA), s 105

Result:

Appeals allowed
Suspended sentences set aside
Sentence of 9 months' imprisonment to be served immediately imposed on each count, such sentences to be served concurrently

Category: B

Representation:

Counsel:

Appellant: Mr A J Sefton
Respondent: Ms M R Barone

Solicitors:

Appellant: State Solicitor
Respondent: Aboriginal Legal Service

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

Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999
Cross v Cook [2001] WASCA 252
Dinsdale v The Queen (2000) 202 CLR 321
Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998
Lowndes v The Queen (1999) 195 CLR 665
Police v Cadd & Ors (1997) 69 SASR 150
R v Clarke (1996) 85 A Crim R 114
R v Payne [2004] SASC 160

Case(s) also cited:

Dragic v Burrows [2000] WASCA 385
House v The King (1936) 55 CLR 499
Marshall v Spent (2000) 111 A Crim R 572
Stewart v Waghorn (1999) 107 A Crim R 288
Zammit v Illich [2003] WASCA 88

MILLER J:

The respondent was charged in the Court of Petty Sessions at Collie on 5 January 2004 with two offences. The first was that on 1 January 2004 at Collie he drive a motor vehicle on Forrest Street, Collie whilst under the influence of alcohol to such an extent to be incapable of having proper control of the vehicle contrary to the provisions of s 63(1) of the Road Traffic Act 1974 (WA). The second was that on the same day and at the same place he drive a motor vehicle while without being the holder of the appropriate driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to the provisions of s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act.
After a number of remands in the Court of Petty Sessions at Collie the respondent was brought before the Court on 31 March 2004 at which time he pleaded guilty to both offences. After hearing the facts and a plea in mitigation of penalty Mr Kelvin Fisher SM sentenced the respondent to 18 months' imprisonment in relation to the drink driving offence and 12 months' imprisonment in relation to the offence of driving under suspension. These sentences were ordered to be served concurrently and were in each case suspended for a period of 2 years. There were additional penalties of disqualification for life in relation to the first of the offences and for 9 months cumulative in respect of the second.
On 3 May 2004 McLure J granted to the appellant leave to appeal the sentences on the grounds that the learned Magistrate erred in law and in fact in:
"(a)Sentencing the Respondent on the basis that he had seven prior convictions for driving under the influence of alcohol, when the Respondent in fact had been convicted on nine occasions of driving under the influence of alcohol.
(b)Sentencing the Respondent under the misapprehension that the Respondent's failure to appear before a court in 2003 indicated a change in the Respondent's criminal behaviour, when in fact the Respondent was, for nine months of the relevant term, incarcerated.
(c)Imposing a suspended sentence when to do so was manifestly inadequate having regard to the consistency and gravity of the Respondent's antecedent criminal history."

The facts

The facts put before the learned Magistrate on 31 March 2004 revealed that at about 8.00 pm on 1 January 2004 the respondent was driving a Holden Kingswood sedan on Forrest Street, Collie when he was stopped by police in relation to what seems to have been a road traffic infringement. He was subjected to breath analysis and a reading of .252 per cent was obtained which calculated to .245 per cent at the time of his driving. Investigation revealed that the respondent's motor driver's licence had been disqualified for life in the Court of Petty Sessions at Collie on 4 December 2002.
These facts were admitted by counsel who represented the respondent before the learned Magistrate. He submitted by way of explanation for the commission of the offences that on the day in question the respondent's brother was to have picked him up and taken him to his mother's house to celebrate her birthday. The brother had failed to appear and because the respondent wanted to be present on the occasion of his mother's birthday he was driving to her house at the time he was apprehended. It was said that he had been drinking during the day because he expected that he would be picked up by his brother and not driving. This, of course, overlooked the fact that he was not entitled to drive in any event.
The respondent was described as a 49‑year‑old single man in receipt of a Newstart Allowance. His record was adverted to by counsel and the learned Magistrate was told that he had not been in trouble since December 2002. A letter from South West Community Drug Service Team ("SWCDST") to the Aboriginal Legal Service was tendered to the Court. It revealed that he had attended at the agency on four occasions between 10 February and 23 March 2004 and had stated that he had significantly reduced his use of alcohol and was building prospects for future job options whilst at the same time accepting the responsibility of assisting a friend care for the friend's children. The SWCDST was of the view that the respondent had made changes in relation to his alcohol use but it was not thought that he required any further assistance from them.

Sentence

Having heard submissions from the prosecuting sergeant and counsel for the respondent, the learned Magistrate proceeded to impose sentence upon the respondent. He pointed out that the respondent had seven prior convictions for driving under the influence of alcohol and almost all of these were attended by the offence of driving under suspension. His Worship made reference to other convictions for driving and alcohol related matters and observed that the respondent's record was reflective of a man who found himself in conflict with the law as a result of excessive consumption of alcohol.
The learned Magistrate pointed out that on almost all occasions in recent times the respondent had been dealt with either by way of fine or imprisonment, although in 1995 he had been offered the opportunity of a Community Based Order.
The learned Magistrate pointed out that on the last occasion upon which the respondent had appeared in Court (4 December 2002), he had been sentenced to a custodial term on the basis that he was an ever increasing risk to the community with his persistence of drinking and driving. He saw nothing to mitigate the respondent's behaviour on the date of the offences before him and considered that a custodial sentence was appropriate. He did, however, see the question for the Court as being whether, by reason of steps taken by the respondent since his apprehension for the offences in January, he had, by reason of attendance upon the SWCDST in Bunbury and absence from use of alcohol, become entitled to a suspended period of imprisonment. His Worship said:
"The fact that you haven't been before the court in 2003, at all, suggests this is not a return to old habits of themselves, and I am encouraged by the fact that you are now an abstainer from consumption of alcohol. And, I propose to suspend a period of imprisonment ‑ ‑
MR MORRISON: Yes, your Honour.
HIS WORSHIP: ‑ ‑ in the understanding that if you return to alcohol, you'll probably find yourself in conflict with the law, which will put you straight back into prison. It'll be the alcohol that puts you there. Do you understand that?
MR MORRISON: Yes, your Honour.
HIS WORSHIP: In respect to the drinking and driving, you're sentenced to 18 months' imprisonment. In respect to the driving under disqualification, 12 months' imprisonment. They are to be concurrent one with the other and they will be suspended for a period of 2 years. Say out of trouble for 2 years, the matter's forgotten. If you find yourself in conflict with the law in 2 years, you'll go to gaol for 18 months. Do you understand that?
MR MORRISON: Yes, your Honour."

Grounds of appeal

The first ground of appeal complains that the learned Magistrate miscalculated the number of prior convictions for driving under the influence of alcohol. The record of convictions reveals that there were nine prior convictions not seven. However, counsel for the respondent made reference to the provisions of s 105 of the Road Traffic Act which provides that where penalties which may be imposed for an offence vary according to whether the person had been convicted previously of an offence against the Act, any such previous offence for which the conviction was recorded more than 20 years before the commission of the present offence, shall not be taken into account for the purposes of determining penalty.
In my view, this section is limited in its application to cases in relation to which a court is called upon to consider a second or subsequent offence and the penalty to be imposed is dependent upon the commission of a prior offence or offences.
In the present case, because there were so many prior convictions, the question of consideration of a second or subsequent offence was somewhat academic. In any event, it appears that the distinction between seven or nine prior convictions for driving under the influence of alcohol was of no real significance in the end result of the sentencing process.
The second ground of appeal contends that the learned Magistrate misapprehended the fact that the respondent's failure to appear before a court in the year 2003 indicated a change in his criminal behaviour. In fact, the respondent was in custody until 23 September 2003 and hence was in no position to commit any offence in the first nine months of that year. The period of time during which he had been out of trouble was thus one of three months and not 12 months. The submission of the appellant is that the offences committed by the respondent on 1 January 2004 were thus a continuation of a persisted course of conduct rather than a "return to old habits".
There is strength in the second ground of appeal. The learned Magistrate did misapprehend the situation in relation to the respondent and gave him much greater credit than was due to him. To have offended by driving under the influence of alcohol and whilst under suspension of sentence as he did on 1 January 2004 was arguably a continuation of the appalling record that the respondent had for each of these offences. He had been convicted on 11 prior occasions of driving under suspension or disqualification.
The third ground of appeal contends that it was manifestly inadequate for the learned Magistrate to impose a suspended sentence when regard was had to the consistency and gravity of the respondent's antecedent criminal history.
Reliance was placed upon a number of decisions that I have given in relation to cases of driving under suspension, particularly Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998 and Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999. In the first of those cases, I followed the decision of the Full Court of the Supreme Court of South Australia in Police v Cadd & Ors (1997) 69 SASR 150 to the effect that, for the offence of driving whilst disqualified suspension of sentence would be unusual, although the circumstances of the offender were to be considered and might in a particular case warrant the giving of a last chance by means of a suspended sentence. At 17 I said:
"…the views expressed by the majority in Cadd reflect the consistent line of authority in this Court, to which I earlier referred. That is, the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of genuine emergency; cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and 'reasons militating in favour of an exercise of mercy'."
In Calway v Wiebe (supra), where I was dealing with a third offence of driving under suspension, and where the offender had committed the second offence only 14 days after the first, I again applied the reasoning of the Full Court of the Supreme Court of South Australia in Police v Cadd (supra) and concluded that there was no reason why a sentence of imprisonment imposed upon the offender should be set aside.
Subsequently, in Cross v Cook [2001] WASCA 252, following the decision in Dinsdale v The Queen (2000) 202 CLR 321, I summed up the situation at [11] ‑ [15] in this way:
"11.The learned Magistrate was correct in saying that in a number of cases in this Court it has been held that the offence of multiple driving under suspension (not a first offence of driving under suspension) will, unless there are exceptional circumstances, generally call for a sentence of imprisonment. In a number of cases leading to and including Marshall v Spent (2000) 111 A Crim R 572, I held that the offence of repeatedly driving whilst disqualified ordinarily warrants imprisonment, and whilst a suspended sentence of imprisonment will always be open in the particular circumstances of a case, it will be an unusual case where the circumstances of the offence support suspension. Cases where I had reached the same conclusion included Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998; Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999. In those cases, as in Marshall v Spent (supra) I followed the decision of the Full Court of the Supreme Court of South Australia in Police v Cadd (1997) 69 SASR 150, where the majority of the court of five justices considered that imprisonment was appropriate for the ordinary case of driving whilst disqualified and that the offence of driving whilst disqualified was of such a type and tends to be committed in circumstances such that cases in which the circumstances of the offence supports a suspension of sentence will be unusual. I relied particularly upon the observations of Doyle CJ (at 167 - 168) to the effect that circumstances justifying suspension are unlikely to be found in routine or run of the mill cases, although individual consideration must, of course, be given to all matters and a suspended sentence may, in exceptional circumstances, be imposed.
12.In all the cases I have decided in this area, I have consistently taken the view that a suspended sentence will always be open, relying particularly upon what was said in R v Liddington (1997) 18 WAR 394 per Steytler J at 406. His Honour there set out the factors to be considered in relation to the question of whether a sentence of imprisonment should be suspended, detailing a wide range of criteria. Nothing said in any cases since that decision has altered those valuable observations.
13.The decision of the High Court in Dinsdale v The Queen (2000) 74 ALJR 1538 has altered the approach to the question of whether or not a finite term of imprisonment should be served immediately or whether it is appropriate to suspend it. …
…
15.In the light of the decision in Dinsdale v The Queen (supra), the question of whether, in a particular case, a sentence of imprisonment should be suspended requires a slightly different approach. I stress that I made it clear in the earlier cases that a suspended sentence of imprisonment will always be open in the particular circumstances of a case, pointing out in Marshall v Spent (supra) (at 574 - 575) that, although a sentence of imprisonment will ordinarily be appropriate for repeatedly driving under disqualification, a suspended sentence will always be open in the particular circumstances of the case. Whether it is now correct to say that a suspended sentence may only 'in exceptional circumstances' be imposed is doubtful in the light of the decision in Dinsdale v The Queen. It would be preferable now to say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may a court impose a sentence of immediate imprisonment. The emphasis tended to be the other way around before the decision in Dinsdale v The Queen."
In R v Payne [2004] SASC 160, a case of dangerous driving causing death, the South Australian Court of Criminal Appeal was primarily concerned with the question whether a guideline judgment should be given. The Court made reference in passing to Police v Cadd (supra), clearly accepting that the case was still authority in South Australia for the proposition that it will be an unusual case where the circumstances of driving under disqualification support suspension of sentence.
Counsel for the respondent stressed that this appeal is an appeal by the State in relation to which the principles are well settled. Reference was made to R v Clarke (1996) 85 A Crim R 114 where the Victorian Court of Appeal restated the principles at 116 - 117 in this way:
"This is an appeal by the Director of Public Prosecutions. The principles which apply to Crown appeals are well established: see Griffiths (1977) 137 CLR 293 per Barwick CJ at 310; Malvaso (1989) 168 CLR 227; 43 ACrimR 451 per Deane and McHugh JJ at 234; 456; Everett (1994) 181 CLR 295; 74 ACrimR 241 per Brennan, Deane, Dawson and Gaudron JJ at 299; 243‑244. These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales in Allpass (1993) 72 ACrimR 561 at 562‑563: see also Osenkowski (1982) 30 SASR 212 at 212‑213; 5 ACrimR 394 at 394-395 per King CJ.
The relevant rules may be stated in the following propositions:
1.An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299; 244) to establish some point of principle. The reason is that such appeals 'represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep‑rooted notions of fairness and decency which underlie the common law principle against double jeopardy': see Malvaso at 234; 456.
2.Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300; 244); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213; 395); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing: see Everett at 306; 249-250.
3.A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or excess or it is shown that the sentencing judge fell into material error of law or fact: see Allpass at 562‑563."
I take full account of these principles in considering this appeal. I also take full account of the importance of the discretion which resides in a learned Magistrate dealing with matters of this nature: Lowndes v The Queen (1999) 195 CLR 665.

Conclusion

I am satisfied that in the circumstances of this case the learned Magistrate erred in law in suspending the terms of imprisonment imposed for the offences before him. When regard is had to the fact that this was a multiple offender in relation to both driving under the influence and driving under suspension/disqualification, it is very difficult to see why a sentence of imprisonment to be served immediately should not have been imposed. The learned Magistrate recognised that fact, but felt that the respondent's record of a year of non‑offending counted strongly in his favour. Unfortunately, this was an error, because the period of non‑offending was only three months by reason of the fact that the respondent had only been released from prison on 23 September 2003.
When one has regard to the fact that the respondent had 11 prior convictions for driving a motor vehicle whilst under suspension, or at least nine of those in the 20 years prior to his arrest, suspension of the sentences does appear to be unduly lenient.
In all the circumstances of the case, I consider that sentences of imprisonment to be served immediately were the only disposition open. The authorities to which I have referred support that view.
Unfortunately, when the learned Magistrate imposed the sentences of 18 months and 12 months respectively for the two offences committed by the respondent he overlooked the provisions of the Sentencing Legislation, Amendment and Repeal Act 2003 and the Sentence Administration Act 2003. The maximum sentence which could have been imposed for each of the offences was 18 months' imprisonment but after the application of this legislation the maximum sentences became 12 months. It follows that the sentence for driving under the influence was in excess of the maximum and that for driving under disqualification was also in excess of the maximum. The respondent had of course pleaded guilty and there were some mitigating circumstances, particularly his apparent reform over the three months since his arrest. In those circumstances the sentences should have been less than the maximum and I think should have been 9 months' imprisonment in each case, to be served concurrently but to be served immediately.
I would allow the appeal, set aside the suspended sentences imposed by the learned Magistrate and impose in lieu of those sentences imprisonment for 9 months in relation to each charge, to be served concurrently and with effect from today.