Matthews v Whalley - [2010] WASC 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MATTHEWS -v- WHALLEY [2010] WASC 165

CORAM: MURRAY J

HEARD: 15 JUNE 2010

DELIVERED : 15 JUNE 2010

PUBLISHED : 30 JUNE 2010

FILE NO/S: SJA 1152 of 2010

BETWEEN: TERRY RICHARD MATTHEWS
Appellant
AND
CLINT NATHAN WHALLEY
First Respondent
MICHELLE TERRI LAWRENCE
Second Respondent
CAMERON STUART HOBSON
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 11748 of 2009, PE 11749 of 2009, PE 59838 of 2009, PE 66820 of 2009, PE 66821 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Road traffic - Offences of driving without authority - Sentences of immediate imprisonment imposed - Whether sentences should be suspended - Cumulative licence suspensions imposed - Whether cumulative terms of suspension mandatory

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed
Sentences varied
Terms of 7 months imprisonment concurrent suspended for 9 months

Category: D

Representation:

Counsel:

Appellant:     Ms A S Rogers
First Respondent          :     Ms K J Dodd
Second Respondent      :     Ms K J Dodd
Third Respondent        :     Ms K J Dodd

Solicitors:

Appellant:     Andrew Maughan & Associates
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent        :     State Solicitor for Western Australia

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

Cooke v Ginby (1994) 21 MVR 351
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dinsdale v The Queen (2000) 202 CLR 321
Nabhan v Wood [2009] WASC 66
Sheiner v Roberts [2009] WASC 281
Stone v The State of Western Australia [2010] WASCA 80
Vasallo v Allison [2006] WASC 147

MURRAY J:

The facts

The appellant is a man of 42 years of age. He had a difficult childhood, but managed to complete a Bachelor of Business degree at Curtin University. He has thereafter functioned as a businessman in various ways including being the owner of the Bridgetown IGA store and other businesses in Bridgetown. It seems that his business empire, although extensive, carried a substantial debt load. A downturn in business activity led to the appellant having to sell off most, if not all, of his business enterprises and he suffered a substantial loss. He took paid employment but felt deeply that he was a failure. He fell into a depressive illness.
As a younger man, he had some minor convictions associated with the use of cannabis. He seems throughout his adult life to have acquired some traffic convictions, particularly for driving with an excess of 0.08% blood alcohol. As a result, from time to time, his motor driver's licence has been suspended or cancelled and periods of disqualification have been imposed. But there is a gap in the offending which, for the appellant it was said, marked a change in his attitude while his businesses were successful, from October 2006 to May 2008.
On 2 May 2008 the appellant was convicted of a reckless driving offence committed on 9 February 2008. It was a conviction under s 60(1b) of the Road Traffic Act 1974 (WA) which creates an offence colloquially described as the 'hoon law'. The offence is driving a motor vehicle at a speed which exceeds the applicable speed limit by 45 kph. He was fined $800 and his motor driver's licence was disqualified for a period of 12 months, a period which would expire on 1 May 2009.
However, during that period, on 18 November 2008, the appellant drove without authority. In the Perth Magistrates Court on 12 March 2009 he was convicted of that offence, contrary to s 49(1)(a). A fine of $500 was imposed and a cumulative disqualification of his driving licence for a period of 9 months was ordered. The effect of that disqualification was therefore to extend the period to 2 February 2010.
However, a mere two months later, on 12 May 2009, the appellant committed his second such offence of driving without authority while disqualified and before that matter could be brought before the court, he committed the same offence again on 9 June 2009. This time when he was apprehended he also gave a false name to the police. He was convicted of those offences in the Magistrates Court on 15 September 2009, was fined $1,000 and $1,200 for the two offences of driving without authority and for each of those offences, cumulative driving licence disqualifications of nine months were imposed, a total of a further 18 months disqualification.
We now come to the offences which were the subject of this appeal. The first of those offences was committed on 13 September 2009, two days before his convictions of 15 September 2009 and, despite the three convictions for that offence which he had accumulated by 15 September 2009, he committed a further two such offences on 9 October 2009 and 23 November 2009.
The facts in each case may be simply stated. The offence committed on 13 September 2009 occurred when at about 9 pm the appellant was riding his motor cycle on Great Eastern Highway, Burswood. He was going to attend a darts match where one of the teams had been sponsored by the appellant.
The offence committed on 9 October 2009 occurred when the appellant was stopped on Kwinana Freeway in Como driving a Mercedes Benz motor vehicle which was unlicensed. It was a vehicle owned in a company name and the company was under administration. It was seized and impounded and remained so when the matter came before the court.
The appellant explained that one of the measures he had been forced to take was to sell his apartment in South Perth. Having done so, he was in the process of moving furniture and belongings from there. It was in the early hours of the morning and he could find no person who could drive for him at that time.
The final offence, committed on 23 November 2009, was again committed when the appellant was stopped for failing to wear a helmet as he road a motor cycle in Serpentine. The motor cycle had been his and had been sold. He was taking it to the new owners. Apparently they already had the helmet.

The proceedings in the Magistrates Court

The offences in question all came before Chief Magistrate Heath on 21 December 2009. Pleas of guilty were entered. During the plea in mitigation a large number of references were tendered on behalf of the appellant. They were mainly from business associates, but in addition there were references from people who testified about the appellant's charitable activities conducted by using funds generated by his business enterprises and deposited in his family trust.
It was made clear, that sadly, the appellant, who had made such strides as a successful business entrepreneur for the benefit not only of himself personally, but also for the benefit of a variety of organisations who received assistance from him, had been brought low by the collapse of his corporate group.
This was the way he was presented to his Honour and the plea in mitigation sought a lenient disposition by fine, or if the court did not consider that to be appropriate, by a suspended term of imprisonment.
In short remarks on sentence, Chief Magistrate Heath referred to the offending history and to the fact that he had been addressed about, 'the various stresses that you are under due to the financial difficulties that have surrounded your businesses'. His Honour expressed his conclusion about sentence as follows:
[Y]ou have simply chosen to completely ignore the court's disqualifications, and in those circumstances in relation to the last two drivings a term of imprisonment and a term of immediate imprisonment is the only appropriate penalty to reflect your complete disregard for the court orders.
The applicable penalty range was provided by s 49(1) par (c)(ii) of the statement of penalty, these being 'subsequent' offences after the first where the authority to drive was suspended other than because of the operation of penalty enforcement laws. The appellant was liable to a minimum fine of $1,000 and a maximum fine of $4,000 and in addition, he was liable to imprisonment for 18 months. Further, there was a mandatory requirement for the court to order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.
It will be recalled that when the appellant was before the court to be dealt with for the second and third offences of driving without authority on 15 September 2009, he was fined $1,000 and $1,200 respectively. On this occasion, for the offence committed on 13 September 2009, he was fined $2,000. True to his word, the magistrate imposed two concurrent terms of 7 months imprisonment upon the appellant for the offences committed on 9 October 2009 and 23 November 2009.
To my mind it is very evident that the line so drawn was in relation to the offending which occurred after the appellant had been dealt with in the Magistrates Court on 15 September 2009. In addition, he ordered further disqualifications in respect of each of the three offences for the minimum period of 9 months in each case. He ordered those disqualifications to operate cumulatively, making a total period of 2 years 3 months.

The appeal

The appellant was given leave to appeal. His grounds are as follows:
1.The learned sentencing Magistrate's discretion miscarried when he determined not to suspend the Appellant's term of imprisonment, the result being a sentence that was manifestly excessive in all the circumstances of the Appellant, both personal to the Appellant and with regard to the offending as a whole.
Particulars
1.1The Appellant's circumstances at the time of the offending;
1.2The circumstances of the offending before the Court;
1.3The Appellant's mental disposition as a result of his business decline;
1.4The Appellant's past contribution to society and integral role within t he community;
1.5The Appellant has not previously been given the opportunity of a suspended term of imprisonment as provided for in the sentencing hierarchy.
2.The learned sentencing Magistrate erred in his sentencing discretion by ordering that the three periods of disqualification run cumulative, the aggregate period of disqualification offending the totality principle both in terms of being crushing on the Appellant and being disproportionate to the Appellant's offending.
Having heard argument, I allowed the appeal on ground 1. I did not uphold ground 2. As a consequence, I varied the decision of the Magistrates Court in respect of the sentences of imprisonment to be immediately served, imposed for the offences committed on 9 October and 23 November 2009, so as to order that the service of those sentences be suspended for a period of 9 months which, of course, would operate from 15 June 2010 when the order was made. In passing, I note that having been sentenced on 21 December 2009, the appellant was admitted to bail by Jenkins J on 6 January 2010.
I should mention one further matter in respect of the appeal. Under s 14(5) of the Criminal Appeals Act 2004 (WA), on an appeal against sentence, this court, 'may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.'
Pursuant to that provision, the appellant tendered, and I received in evidence, a copy of a report by a Dr Langsford, a psychologist. He says that since 16 November 2009 (and therefore before the appellant committed the last of the unauthorised driving offences and before he was sentenced) he has been counselling the appellant for what he describes as 'severe depression' caused by the loss of his businesses and exacerbated by being declared bankrupt shortly before the report dated 8 June 2010 was written.
Dr Langsford describes the offending by the appellant by driving without authority, as being 'uncharacteristic of his personality'. He refers to the appellant's otherwise prior good character and the help he has offered to others through the Foundation he had established. He concludes his report in the following way:
Given that Mr Matthews does not have a history of offending, and has always had the community's best interests at heart, I request that you consider a non‑custodial sentence to allow Mr Matthews to work with me to rebuild his life. Incarceration will most certainly exacerbate his depression greatly and rehabilitation will be a lengthy and arduous process.
Of course, as I have mentioned, the appellant does in fact have a long history of offending, particularly against the traffic laws, but there is no doubt that the evidence establishes that he has made efforts to assist others in the community who have been in some way disadvantaged. Further, I would not doubt that to serve a term of 7 months imprisonment would worsen the appellant's depression which, I accept Dr Langsford means me to understand, is the illness often referred to in that way.
In support of the power to accept evidence of this kind under s 14(5) of the Criminal Appeals Act, the case of de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 was cited to me. That was in fact an appeal against conviction in a drug importation case. The appellant was a Colombian national. Interpreters were used at the trial and the appellant claimed that the trial was unfair because of the poor quality of interpretation. He sought to provide further evidence before the Court of Appeal in support of this claim in the form of an expert report upon the standard of interpretation provided at the trial. The report was commissioned following the appellant's conviction.
Although the report was received in evidence before the Court of Appeal, it was held that it was 'new' rather than 'fresh' evidence as it was technically available at the trial. Further, the report did not raise sufficient doubt of the appellant's guilt to require that the conviction should be quashed.
The court admitted the evidence under s 40 of the Criminal Appeals Act which sets out generally the powers of the Court of Appeal. In s 40(1)(b) ‑ (e) there are very wide powers to admit evidence whether available at trial or not. The power is by no means as restricted as that conferred in respect of an appeal to a single judge under s 14(5).
Having received the evidence in this case, it must be said that the only matter which has occurred between when the offender was convicted and sentenced and when the appeal was heard, about which the report speaks, is the continuation of the counselling treatment in respect of the appellant's depressive illness. Perhaps it may be said, if there was doubt about it, that this occurrence has confirmed the existence of the illness and that it was affecting the appellant during the period when these offences were committed.
So much may be accepted, but there is nothing in the report to suggest that if the sentences of imprisonment to be immediately served were otherwise required, the magistrate's discretion should be regarded as having miscarried because of the adverse impact of the sentences upon the appellant personally and upon his state of health. Rather, the report contends for the proposition, which I can readily accept, that to be incarcerated by way of punishment would make more difficult the appellant's treatment, if that is what is meant by the reference to his 'rehabilitation'. I was not assisted by this new evidence.

Did the sentencing discretion miscarry?

It can be seen that ground 1 of the appeal focused attention upon the decision not to suspend the term of imprisonment of 7 months imposed. Particulars were provided. The appeal was not pursued upon the ground that fines should have been imposed or upon the ground that if a sentence of imprisonment was required, a term of 7 months imprisonment was too long.
Indeed, reference to the very useful recent decision of McKechnie J in Sheiner v Roberts [2009] WASC 281 where, as an addendum to the judgment, his Honour provided a table setting out the sentences imposed for driving without authority in a series of cases over the last 10 years, would reveal that in this case such an argument would be doomed to failure.
The sentencing pattern revealed in relation to offences of driving without authority whilst under suspension, shows that Magistrates Courts will be upheld when, in a proper case, sentences of imprisonment are deemed to be the only appropriate penalty because of repeated offending revealing an unwillingness to be bound by the law and an unwillingness to accept that the right to drive a motor vehicle on a public road is a privilege afforded to the citizen while that person's behaviour behind the wheel respects the rights of others on the road. Once that privilege is withdrawn, the court will insist that an offender does not drive and cases where the law is flouted, particularly repeatedly, will be visited by punishment of increasing severity, including by imprisonment.
As I say, any argument that that point had not been reached in this case was abandoned, as was any argument that a term of 7 months imprisonment in the circumstances of this case, was too great. The argument focused attention on the decision not to suspend the term of imprisonment imposed.
During the course of argument it was submitted that his Honour, the Chief Magistrate, had failed to consider suspension of the sentence. But in my opinion, that argument could not be made good. I have quoted his Honour's remarks. They make it abundantly clear, by his Honour's express reference to his decision to impose a term of 'immediate imprisonment' that he was rejecting the submission that service of the term should be suspended. It was here, in my opinion, that his discretion did miscarry.
There have been no developments in the law as to the process which a sentencing judge must adopt in considering the question of suspension of service of a term of imprisonment since the High Court's decision in Dinsdale v The Queen (2000) 202 CLR 321. The law is clear. A sentence of imprisonment is the sentence of last resort under the terms of the Sentencing Act 1995 (WA) and it is clear that only in a case where the sentencing court decides that a sentence of imprisonment must be imposed, will it be necessary to consider whether or not that sentence should be suspended or should immediately be served.
That is the way in which the Sentencing Act is expressed. I need not refer to the particular provisions. The purpose is quite evidently to prevent what is sometimes described as a process of 'bracket creep'; widening out the category of cases where imprisonment as a sentence of last resort may be imposed to include those cases where, if such a sentence was to be immediately served, it would not be imposed.
Once the decision to imprison is arrived at, the case falls therefore into the category of cases where the most serious punishment known to the law is to be inflicted. The court is then obliged to have regard to all those factors which resulted in that decision in its consideration of the next step in the sentencing process, the decision of the question whether or not the sentence is to be immediately served or whether its service is to be suspended for a time. Exactly the same balancing exercise between aggravating and mitigating circumstances is to be undertaken.
The decision is not to be made upon any restricted basis. It would be wrong to ask the question whether the sentence of imprisonment should be suspended in mercy or because of special considerations. But of course, the case may be one where a defensible exercise of discretion involves the conclusion that the sentence must be served for various reasons, including that the circumstances are simply too serious to allow any mitigation to divert the court from the view that the sentence of imprisonment arrived at is the only appropriate punishment.

This, I think, was not such a case for very much the reasons adverted to in the appellant's particulars offered in support of ground 1. The appellant was a man who had come from a disadvantaged background to achieve much in business and in his contribution to the community and to other persons in disadvantaged circumstances. He had never been in prison before. He was grappling with a crisis in his life which was of major proportions. His entrepreneurial business activities had come to nought. Indeed, shortly after he was sentenced he was declared bankrupt. He was in the process of trying to put his life together again.
At the same time he was wrestling with his view that he had failed and that his reputation in business and in the community was shattered. He was suffering from the illness of depression and his thought processes were clearly disordered. While his culpability for his offending behaviour remained high and justified the decision that he should be sentenced to imprisonment to deter him from continuing the cycle of offending, there was no reason to suppose that sufficient personal deterrence and general deterrence would not be provided by the decision to impose the sentence of imprisonment, but required the decision that it must be immediately served.
It was for those reasons that I considered that the appellant ought not to have been sent to prison for the first time for these offences.

The cumulative disqualifications

The second ground of appeal asserts that Chief Magistrate Heath erred by ordering the three periods of disqualification to run cumulatively. To do that, the ground asserts, offended the totality principle and, as the argument was presented, it was put that the result was disproportionate to the seriousness of the offending. The respondents argue that his Honour had no choice. They point to the terms of s 49(8) of the Act:
A period of disqualification ordered under subsection (1) is cumulative upon -
(a)any other period of disqualification to which the person may then be subject; or
(b)any period for which the operation of a driver’s licence held by the person may currently be suspended.
Divergent views have been expressed as to whether that provision requires that periods of disqualification or suspension of licence ordered on the same occasion, must be cumulative one upon the other. The question is whether the words 'may then be subject' in s 49(8)(a) and the words 'may currently be suspended' in s 49(8)(b) are properly to be interpreted as including periods of disqualification or suspension previously imposed on the same occasion.
It is perhaps noteworthy that in this case the magistrate's sentences were imposed in the order of the commission of the offences and he added the 9 months cumulative driver's licence disqualification, 'in each case'.
Section 49 is expressed in terms commonly found in the Road Traffic Act. I should refer in relation to mandatory disqualifications to s 106A. It is in the following terms:
(1)If this Act requires a court to disqualify an offender from holding or obtaining a driver’s licence -
(a)for a specific period provided in relation to the offence concerned (including permanent disqualification);
(b)for a period not less than a minimum period provided in relation to the offence concerned; or
(c)for a period not less than a minimum period, and not more than a maximum period, provided in relation to the offence concerned,
the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -
(d)for that period;
(e)for a period not less than that minimum period; or
(f)for a period not less than that minimum period and not more than that maximum period.
(2)Subsection (1) has effect despite any other written law.
However, that section does not answer the question which has been ventilated in decided cases, whether a mandatory disqualification which is to operative cumulatively, will operate in respect of terms of disqualification imposed for a series of offences for which sentence is passed on one occasion.
The other relevant provision to which reference should be made is s 105 of the Sentencing Act, which, so far as material, is in the following terms:
(1)A court sentencing an offender for a motor vehicle offence may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver’s licence.
(2)The term is concurrent with -
(a)any other term for which the offender’s driver’s licence is or may be disqualified; or
(b)any term for which the offender’s driver’s licence is or may be suspended,
unless the court orders that the term is to be cumulative on those terms.
(3)…
(4)This section does not affect -
(a)the right or duty of a court to disqualify a person from holding or obtaining a driver’s licence under the Road Traffic Act 1974;
(b)the operation of section 18 of the Motor Vehicle (Third Party Insurance) Act 1943.
(5)In this section -
driver’s licence has the same definition as in the Road Traffic Act 1974;
motor vehicle has the same definition as in the Road Traffic Act 1974;
motor vehicle offence means -
(a)an offence an element of which is the driving or use of a motor vehicle;
(b)stealing or attempting to steal or conspiring to steal a motor vehicle;
(c)receiving or attempting to receive or conspiring to receive a motor vehicle;
(ca)an offence where -
(i)a motor vehicle is used in the commission of the offence;
(ii)the commission of the offence is aided or facilitated by the use of a motor vehicle;
(d)an indictable offence (whether it was tried on indictment or not) where -
[(i), (ii) deleted]
(iii)a motor vehicle is used after the commission of the offence to provide, or to attempt to provide, a means for the offender to leave the place of the commission of the offence;
(iv)a motor vehicle is used by the offender after the commission of the offence to avoid, or to attempt to avoid, apprehension.
A number of points should be made. In the first place, s 105(1) provides a general power of disqualification from holding or obtaining a driver's licence when the court is sentencing an offender 'for a motor vehicle offence', as that term is defined in subs (5). As to that definition, it will be noticed that the types of offences may, and probably will be offences in respect of which the penalty provisions applicable upon conviction will not include an express power to order a motor driver's licence disqualification. This section provides a general power, but in my opinion, s 105(4)(a) makes it clear that s 105 does not have effect to qualify the ambit of a power, whether mandatory or not, provided to a sentencing court, to disqualify a person from holding or obtaining a driver's licence under the Road Traffic Act.
It would follow, in my view, that the way in which the power of disqualification must be exercised under s 105, cannot be applied directly to the interpretation of the provisions of the Road Traffic Act. Section 105(2) makes it clear that a disqualification imposed in respect of a particular offence, will run concurrently with any other term imposed on the same occasion or on a previous occasion. That is made clear by the use of the phrase, 'any other term for which [the licence] is or may be disqualified', or 'is or may be suspended'. If the court wishes a number of disqualifications imposed on the same occasion or on a later occasion to have a cumulative effect, it must so order.
However, it could not be held on that ground alone, that the proper interpretation of the mandatory disqualification power or duty under s 49(1) par (c) of the penalty provision, in the light of s 49(8) of the Road Traffic Act is that, unless expressly ordered to be cumulative, any disqualification would operate concurrently with one imposed on a previous occasion or earlier on the same occasion.
Indeed, it seems to me that the purpose and effect of s 105(4)(a) of the Sentencing Act is to make it clear that s 49(8) of the Road Traffic Act is to be given its full force and effect to provide that the cumulative nature of the disqualification imposed under s 49, is not dependent upon the making of an order that the term of a disqualification shall take effect cumulatively. The question remains, however, whether that means cumulatively upon periods of disqualification imposed on previous occasions or whether it means cumulatively upon periods of disqualification imposed both on previous occasions and before the period of disqualification in question, but on the same occasion.
The question was adverted to by the Court of Appeal (McLure P and Owen JA) in Stone v The State of Western Australia [2010] WASCA 80, a decision delivered on 4 May 2010, at [29] ‑ [31] of the judgment of the court. However, as the court noted, the matter not having been argued, and the court being of the view that if Deane DCJ was wrong to have regarded herself as bound to impose cumulative terms of disqualification, the error in accumulating the terms would not have led to a different order being made and the appeal would still be dismissed: Criminal Appeals Act, s 31(4).
However, in passing, their Honours did say that, 'Our tentative view is that s 49(8) [of the Road Traffic Act] requires the imposition of cumulative terms'. I should note, that in that case there were seven charges of driving without authority under the Road Traffic Act for which Deane DCJ was required to sentence the appellant under a notice provided in accordance with the terms of s 32 of the Sentencing Act.
In Cooke v Ginby (1994) 21 MVR 351 the question arose before Walsh J in an appeal against sentence in respect of two offences of driving while disqualified, where, although they were committed on different occasions, sentence had been passed by a magistrate on one occasion at a time when the appellant was already serving a period of disqualification imposed on a previous occasion.
The relevant provision of s 49 of the Road Traffic Act was then s 49(3c). that subsection was materially in the same terms as s 49(8) now is. The magistrate had taken the view that he was required to impose the mandatory disqualifications so that they operated not only cumulatively upon the disqualification earlier imposed, but upon each other.
Walsh J disagreed. He said that all that the Act required was that:
any period of disqualification imposed must be cumulative on any period of disqualification currently being served. It does not require that if more than one period of disqualification is imposed for different offences, as is the present case, those periods be served cumulatively (356).
Vasallo v Allison [2006] WASC 147 was a case involving two appeals against sentences imposed in the Magistrates Court on the one occasion for two offences of driving without authority while disqualified. It was accepted that the two periods of disqualifications imposed must operate cumulatively upon that previously imposed. But again, it was contended that the magistrate erred in considering that the two periods of disqualification imposed on the one occasion must operate cumulatively one upon the other.
Le Miere J sought to distinguish Cooke v Ginby. At [23] his Honour held that when the first of the two matters before the magistrate was dealt with, it was evident that the law required that the disqualification then imposed should operate cumulatively upon that previously imposed, to which the appellant was then subject. His Honour said that when the magistrate came to impose the second disqualification on the same occasion, it had to operate cumulatively upon both of the previous two disqualifications because the appellant was then subject to both.
His Honour made his view abundantly clear when he said:
It may be different where the court imposes two periods of disqualification in respect of two offences where the sentences are imposed at the same time. That appears to have been the case in Cooke v Ginby. However, that is not this case. The periods of disqualification were not imposed at the same time. The second was imposed after the first, notwithstanding it was imposed immediately after the first matter had been dealt with. After the first period of disqualification had been imposed it took effect. When the Magistrate came to make the second order the first order had already taken effect and the appellant was then subject to the period of disqualification imposed by the first order [24].
The same view was taken in the same circumstances by Hasluck J in Nabhan v Wood [2009] WASC 66. By that time, s 49 was in its present form and the crucial provision was s 49(8) worded as it now is.
The appeal was against orders for driver's licence disqualifications to be served cumulatively which had been made as part of the sentencing process on the one occasion. Again, the question was whether the lower court was bound to impose the disqualifications to operate cumulatively. Hasluck J discussed Cook and Vasallo and concluded that the latter decision should be followed. But his Honour construed s 49(8) for himself and he said:
To my mind, s 49(8) of the Road Traffic Act is quite explicit that a period of disqualification ordered under s 49(1) is cumulative upon any other period of disqualification to which the person may then be subject. It is a mandatory provision which is clearly intended to exclude the discretionary power which might otherwise be thought to exist.
In the present case, when the time came for the justices of peace in the present case to deal with the second offence, the position was that a period of disqualification of 9 months had already been imposed in respect to the first offence with the result that the appellant had to be regarded as a person by then subject to a period of disqualification. The effect of the provision is mandatory with the result that the second period of disqualification was to be cumulative [51] ‑ [52].
With respect, I agree. A period of disqualification of at least 9 months must be ordered when the court is required to do so under s 49(1) by the mandatory terms of par (c) of the statement of penalty in that subsection. That is an order which may not be made globally in relation to a number of different offences for which sentence is to be imposed on the same occasion, but it is an order which must be made in respect of each offence.
It matters not in my opinion, that having imposed sentences for a series of offences, the court then says, as his Honour the Chief Magistrate did on this occasion, that there would be orders of disqualification in respect of each of the matters before the court. The orders must necessarily be made in a formal sense in sequence, one after the other, in respect of the convictions to which they relate.
When one comes then to consider the effect of s 49(8) and the requirement for a period of disqualification to be cumulative, the subsection is clear. If it is an order of disqualification under s 49(8)(a) it must be cumulative upon any other period to which the accused is then subject. That must include a period of disqualification previously imposed, whether on a different earlier occasion or earlier upon the same occasion.
If one is concerned with an order of disqualification by the suspension of a current driver's licence, then under s 49(8)(b) the same effect is achieved. When consideration is being given to the question whether the period of disqualification is to be cumulative upon any other period, it will necessarily be the case that whether an order of suspension has been made on a previous occasion or previously on the same occasion, the offender's driver's licence will currently be suspended under any such order when another order is made.
It was for those reasons therefore,, that I declined to uphold the second ground of the appeal.
But in finally parting with the case, I should add that had I been of the view that his Honour the Chief Magistrate had erred by not considering the exercise of a power to allow concurrent periods of disqualification, I would still have dismissed this aspect of the appeal because it seems to me that to impose the mandatory orders of disqualification to operate cumulatively, not only upon periods of disqualification ordered on earlier occasions, but also upon those periods of disqualification imposed earlier on the same occasion, would not have demonstrated error in the exercise of the discretion which on that view of the statutory scheme would exist.
In my opinion, the aggregate period of disqualification could not be said to be manifestly excessive or to offend in any way the proper application to the case of the totality principle.
In that circumstance, I would hold that the error made was such that no substantial miscarriage of justice occurred and I would exercise the power to dismiss this aspect of the appeal pursuant to s 14(2) of the Criminal Appeals Act. In the circumstances however, it is unnecessary to discuss this view at any length.