McDonald v White
[2007] WASCA 213
•5 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McDONALD v WHITE [2007] WASCA 213
CORAM: STEYTLER P
McLURE JA
EM HEENAN AJA
HEARD: 5 OCTOBER 2007
DELIVERED : 5 OCTOBER 2007
PUBLISHED : 15 OCTOBER 2007
FILE NO/S: CACR 81 of 2007
BETWEEN: LISA MARY McDONALD
Appellant
AND
PAUL DAVID WHITE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JOHNSON J
Citation :McDONALD -v- WHITE [2007] WASC 138
File No :SJA 1038 of 2007
Catchwords:
Criminal law and procedure - Appeal against sentence - Reckless driving - Driving while licence under suspension - Unlawful damage - Guilty plea - Failure by magistrate to state in open court that guilty plea taken into account in passing sentence as required by the Sentencing Act 1995 (WA) s 4 - Inference that magistrate failed to consider guilty plea - Appellant re-sentenced
Legislation:
Sentencing Act 1995 (WA), s 8(2), s 8(4)
Result:
Appeal allowed
Appellant re-sentenced to a total of 10 months' imprisonment
Category: D
Representation:
Counsel:
Appellant: Mr D S Hunter
Respondent: Mr C S Bydder
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Anderson v Heath [2005] WASC 253
Anderson v Stilwell [2006] WASC 257
Anderson v The State of Western Australia [2005] WASCA 228
Austin v Grapes [2004] WASCA 102
Bakdadi v O'Neill [2003] WASCA 267
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Forbes v Durant [1999] WASCA 85
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203
Jones v The State of Western Australia [2006] WASCA 181
Kearney v Rinaudo [2007] WASC 104
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASC 138
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Rossiter v Francisty [2005] WASC 270
JUDGMENT OF THE COURT: On 6 March 2007 the appellant was convicted in the Magistrates Court at Busselton on five charges. The first related to an offence of unlawful damage to property committed on 1 January 2007. The other four charges related to driving offences committed on 13 February 2007. These were offences of driving while the appellant's driver's licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so. The appellant made an early plea of guilty to each of the offences charged. She was sentenced to a total term of 15 months' imprisonment and to a total of $1,400 in fines. She was also disqualified from holding a driver's licence for 12 months. She appealed against the sentences of imprisonment imposed upon her. The appeal was dismissed by a single judge of the Supreme Court, Johnson J. The appellant has been given leave to appeal to this Court against the decision of Johnson J, but only on two of the grounds raised by her. At the conclusion of argument on the appeal we allowed the appeal, set aside the order made by Johnson J and the sentences imposed by the Magistrate and re‑sentenced the appellant. These are our reasons for doing so.
The offences charged
The offence of unlawful damage to property was committed at 8.40 am on 1 January 2007. The appellant was the former de facto partner of the complainant, Mr Neil Finney. She and Finney had a 2‑year‑old child. The appellant wanted to see the child, who was in Finney's house at the time. She consequently went to his house. She was then affected by alcohol and possibly also drugs. She kicked the glass sliding door at the front of the house with sufficient force to crack the glass. She then banged on the front window of the house with both her hands for about a minute. The force of the blows ultimately caused the glass to smash. The appellant fell forwards and through the smashed front window. She pulled herself out of the window frame and then entered the house, bleeding badly from a cut to her left arm. Finney told her to leave. She did so. Repairs to the door and window cost $490.
The driving offences occurred in the early hours of the morning of 13 February 2007. At 2.57 am the appellant was driving her car along Caves Road in Siesta Park. A police car travelling in the opposite direction picked her car up on its mobile radar. The radar showed that her car was travelling at a speed of 128 kms per hour. The car was in a 90 km per hour zone. The police activated their emergency lights and pursued the appellant's car. Instead of slowing down, the appellant accelerated to a speed of 140 kms per hour and then to 150 kms per hour. The police turned on their siren. Notwithstanding this, the appellant continued to maintain a speed of between 140 and 150 kms through a 90 km per hour zone and then through a 70 km per hour zone. Some parts of the carriageway upon which she was driving were wet due to nearby reticulation sprinklers. She turned off Caves Road and drove in an easterly direction on Bussell Highway in Broadwater, still at a speed of between 140 and 150 kms per hour. Eventually she slowed and turned right into a gravel entry to her home. She accelerated, while driving on a narrow dirt track, causing her car to slide sideways. The police were still following. The appellant made a sharp right turn, almost lost control of her car, continued on the dirt road and stopped near the front of her house. She stayed in her car.
The police got out of their car in order to approach the appellant. She accelerated forward for a short distance, until she reached the front of her house. The police followed in their car. The appellant stopped her car and then reversed until her car was directly in front of the police car. She locked her car door. Then she drove forwards, stopping near her front door. The police removed her from her car. A subsequent test revealed that she had a blood alcohol level of 0.138%. The police also discovered that the appellant had been disqualified from holding a driver's licence.
The police pursuit of the appellant's car had continued for some three minutes. During that time the appellant's car had covered a distance of 6 1/2 kms notwithstanding that the police vehicle had had its emergency lights and siren on. The appellant claimed that she did not see the police car and that she was 'half deaf'.
The appellant's personal circumstances and prior history of offending
At the time of the offences, the appellant was 30 years old. She had a senior position at a mining equipment company. The sentencing magistrate was told that, at the time of the driving offences, the appellant suffered from post‑natal depression, having had a child some eight weeks earlier. She had left the child with her mother. On 12 February 2007 her mother had telephoned her at her work and told her that the Department for Community Development had removed the child. As a result, the appellant was frantic. After trying to get some help she went to her friend's place 'to get some consolation'. She began to drink there in the middle of the afternoon and continued to do so until late at night. She then drove her car. She said that, at the time, she was in turmoil and emotionally traumatised.
The appellant had a long history of prior offences. These included five convictions for driving with a blood alcohol content in excess of 0.08%. These offences were respectively committed on 15 August 1996 (she was fined $300 and disqualified from driving), 6 November 1996 (she was fined $500 and her licence was cancelled), 13 October 2002 (she was fined $1,000 and disqualified from driving), 2 October 2003 (she was made the subject of a community‑based order and a community service order and her licence was cancelled) and 30 September 2005 (when similar penalties were again imposed).
The appellant had also been convicted on nine occasions between 2 October 1996 and 30 September 2005 of driving while her driver's licence was suspended or cancelled. The certified copy of the appellant's traffic convictions reveal that two of these offences occurred while the appellant's licence was suspended as a result of non‑payment of fines, although counsel for the appellant suggested, in his written submissions, that only six of the convictions were in respect of court‑imposed suspensions or cancellations. The sentences imposed encompassed fines and further disqualifications or cancellations of the appellant's licence. Other orders, including community‑based orders and an intensive supervision order had also been made.
The appellant's criminal record also included other convictions. The most significant of these is one of manslaughter, arising out of the stabbing of a man who was then the appellant's boyfriend. There were also convictions for assault, disorderly conduct and burglary. Surprisingly, the appellant had not previously been sentenced to a term of immediate imprisonment, notwithstanding her unenviable record.
The Magistrate's decision
The Magistrate sentenced the appellant to a term of 9 months' imprisonment in respect of the charge of driving under suspension. He imposed a cumulative term of 6 months' imprisonment in respect of the reckless driving offence. On the charge of unlawful damage to property he imposed a sentence of 6 months' imprisonment to be served concurrently with the other terms of imprisonment imposed. He imposed fines in respect of the other offences. He also imposed a further disqualification of the appellant's driver's licence.
The Magistrate's reasons were very briefly expressed. As to the charge of driving under suspension, he mentioned that this was the 'eighth time' that the appellant had been convicted for such an offence. When dealing with the offence of reckless driving, he said that he regarded the failure to stop when called upon as an aggravating circumstance because, when told to stop, 'she had the opportunity then to bring it all to an end but … sped up to an even greater rate'. When asked by the prosecutor, he confirmed that he had considered the option of suspending the sentences of imprisonment imposed but that he had concluded that it was not appropriate to do so. He did not mention the appellant's pleas of guilty or any other matter that had been mentioned by way of mitigation.
However, it is plain from the transcript of his exchanges with counsel that the sentencing Magistrate was strongly influenced by the appellant's prior criminal record, by the seriousness of the offending and by what he regarded as the appellant's failure to accept responsibility for her conduct. He said, in this last respect, that she had tried 'to look at every reason why she shouldn't be … [blamed]' for her offending.
The Magistrate said that the appellant had been dealt with excessively leniently in the past. He also said that the present offences were the worst of the kind that she had committed because of the combination of driving with a high blood‑alcohol reading and at a speed of 150 kms per hour in a 70 km per hour zone. He said that she showed a blatant disregard for the law and had put people's lives at risk.
The appeal to Johnson J
The appellant relied upon eight grounds in her appeal to Johnson J. The first ground was that the Magistrate had erred in failing to give the appellant any discount in respect of her early pleas of guilty. The eighth ground was that the aggregate sentence of 15 months' imprisonment was disproportionate to the overall criminality involved in the offences committed by the appellant. It is unnecessary to mention the other grounds of appeal that were relied upon by the appellant save to mention that these included appeals against the individual sentences of imprisonment imposed on the ground that each was manifestly excessive and on the further ground that the Magistrate had not given any meaningful consideration to the imposition of a suspended sentence.
Johnson J gave detailed reasons for dismissing the appeal: McDonald v White [2007] WASC 138.
Before dealing with each individual ground of appeal, Johnson J outlined the facts giving rise to the convictions, the explanations offered by the appellant in respect of them, the appellant's criminal history and the sentencing remarks and other comments of the sentencing Magistrate. She also said that the Magistrate had been justified in his opinion that the appellant continually failed to accept responsibility for her actions and that, despite being given the benefit of non‑custodial sentences, she had not changed this aspect of her character and had not been deterred from re‑offending [25] ‑ [27], [30].
When Johnson J came to deal with ground 1, she referred to s 8(2) and s 8(4) of the Sentencing Act 1995 (WA). These read as follows:
(2)A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
…
(4)If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
She went on to say:
The fact that the Magistrate was aware that the appellant had pleaded guilty is obvious because the plea was made before him a short time before sentence was passed. That the plea was made at an early stage would also have been apparent from the prosecution notice which indicated that the appellant's first appearance was on 13 February 2007, at which time the matters were adjourned to 6 March 2007 and the pleas of guilty were entered on that date. It is correct to say, however, that the Magistrate did not refer at any stage of the proceedings to the impact of the plea of guilty on the sentences. The difficulty lies then in determining whether the deduction was not made or simply was not mentioned. [33]
Johnson J went on to refer to a number of cases dealing with a situation of that kind. It is enough to say, in respect of these cases, that they support the following propositions:
(a)given the requirement imposed by s 8(4) of the Sentencing Act, a failure to refer to the effect of a plea of guilty will ordinarily be an indication that the sentencing judge has overlooked it;
(b)however, the fact that the requirement imposed by s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea; and
(c)a sentence will not be overturned for failure to accord any weight to a plea of guilty if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
See "H" v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10] and the cases there referred to.
Johnson J went on to say that she was not prepared to find that the Magistrate had failed to take into account the plea of guilty. However, she said that he had erred in failing to say whether or not he had reduced the sentences imposed on account of it [46]. She said:
It is necessary then to consider whether, and to what extent a discount should have been given in this case for the plea of guilty and to consider whether the sentence imposed reflects that, or whether, even making an appropriate reduction for the plea, no different sentence, in all the circumstances, should have been imposed. I therefore propose to firstly deal with those grounds of appeal that allege that the sentences for the particular offences were manifestly excessive. However, in considering whether the sentences are excessive it will be necessary, amongst other matters, to consider what would be an appropriate discount for an early plea of guilty in the circumstances of this case. [47]
Johnson J then considered a number of the cases dealing with the discount ordinarily allowed in cases of pleas of guilty. Having done so, she concluded that, in view of the findings that she had made, later in her judgment, concerning the individual sentences of imprisonment (all of which she considered to have been appropriate, even allowing for each guilty plea), ground 1 should be dismissed [58].
As to ground 8, Johnson J said that, having upheld the sentences for the offences of damage and reckless driving, the only remaining issues were whether the sentence for the offence of driving under suspension was outside a sound discretionary range and whether the total period of imprisonment imposed was manifestly excessive [119].
As to the first of those issues, she mentioned that the penalty for driving whilst under suspension was a fine of between $1,000 and $4,000 and imprisonment for not more than 18 months. She noted that, taking into account the effect of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the upper sentencing limit for a term of imprisonment was effectively 12 months. Then, having reviewed a number of the cases dealing with offences of this kind, she concluded that the imposition of a sentence of 9 months' imprisonment did not reflect any manifest error [126].
Johnson J then turned to the issue of totality. She said that there was no allegation that the Magistrate had failed to consider the totality principle and that the sole basis for the argument put was that the aggregate sentence breached that principle because it was disproportionate to the overall criminality of the appellant's offending behaviour. Having again considered the circumstances of the appellant's offending and sentences that had been imposed in other cases of this kind, she concluded that the total sentence imposed was 'well justified in all the circumstances' [132].
The appeal to this Court
The appellant applied for leave to appeal to this Court on six grounds. She was given leave in respect of two of them, grounds 1 and 6. These read as follows:
1.The Learned Justice erred in failing to hold that the Learned Magistrate was in error in failing to give the Appellant any discount on the sentences imposed to account for the Appellant's early pleas of guilty.
…
6.The Learned Justice erred in failing to hold the aggregate sentence of 15 months' imprisonment imposed by the Learned Magistrate was disproportionate to the overall criminality involved in the offences in regard to all the circumstances of the case including those personal to the Appellant.
Particulars
(a)The offences of Driving under suspension and reckless driving occurred in the 'one transaction'.
(b)The Appellant had never been sentenced to an immediate term of imprisonment before.
(c)Personal matters raised by the Appellant's Counsel were not treated as mitigatory matters.
(d)No account was taken of the Appellant's early pleas of guilty.
Ground 1
As we read the judgment of Johnson J, she proceeded upon the assumption that the Magistrate had considered each plea and that his error lay in failing to say whether he had reduced each sentence on account of it. We have mentioned that she said that it was then necessary to consider to what extent a discount should have been given for the pleas of guilty and also whether, even making an appropriate reduction for each plea, any different sentence should have been imposed [47]. However, as we understand her reasoning, she ultimately concluded, in the case of each offence for which a sentence of imprisonment was imposed, only that the penalty imposed was within the range of an acceptable exercise of discretion. In the case of the unlawful damage to property she said only that the penalty imposed was not disproportionate to the gravity of the offence [67]. In the case of the reckless driving offence, she said only that the sentence imposed fell within a sound discretionary range and did not manifest error [83], [89]. In the case of the offence of driving under suspension she said only that the sentence imposed 'was not so far beyond other sentences imposed as to manifest error' [126].
We agree with Johnson J that the fact that the appellant's pleas of guilty had been made shortly before the sentences were imposed makes it unlikely that the Magistrate would not have been aware of them. However, in the absence of anything to suggest that he did, in fact, make some allowance for the pleas of guilty, it seems to us that the only inference that can properly be drawn from his failure to mention them, notwithstanding the provisions of s 8(4) of the Sentencing Act, and from the severity of the sentences imposed by him, is that he made no reduction on account of them.
In our respectful opinion that was plainly an error. Although the appellant's pleas of guilty were unavoidable and unaccompanied by any real remorse or acceptance of responsibility, the authorities (including those referred to by Johnson J) overwhelmingly support the proposition that some discount should be allowed even in such a case, if only to reflect a willingness to facilitate the course of justice: as to which see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. This conclusion required that the appeal be allowed and that the appellant be sentenced afresh, unless the Court concluded that, even allowing for each plea of guilty, it would not have imposed any different sentence: s 31(4)(a) of the Criminal Appeals Act. As we have said, as we read her judgment, Johnson J did not do that. Instead, she decided only that the sentences imposed fell within an acceptable range in the exercise of the Magistrate's discretion. Consequently, ground 1 was made out and it was for this Court to decide whether any, and if so what, different sentence should, in each case, have been imposed.
We will deal first with the offence of driving under suspension. This offence was a serious instance of its kind, when regard is had for the appellant's prior record. The upper sentencing limit was, as Johnson J remarked, effectively 12 months' imprisonment for the offence, having regard to the transitional provisions.
Cases decided since the coming into effect of the transitional provisions reveal that prison sentences are commonly imposed in the case of serious repeat offenders: see, for example, Austin v Grapes [2004] WASCA 102; Mason v Morrison [2004] WASCA 181; Anderson v Heath [2005] WASC 253; Rossiter v Francisty [2005] WASC 270; Anderson v Stilwell [2006] WASC 257 and Kearney v Rinaudo [2007] WASC 104. Because this was the appellant's eighth conviction in respect of court‑ordered suspensions, any sentence other than one of immediate imprisonment could not be justified. The only question seemed to us to be how long that sentence should be.
The cases (including those to which we have referred) reflect some inconsistency in the length of the terms of imprisonment imposed for offences of this kind. For example, in Mason the appellant was sentenced, after a successful appeal by the prosecutor, to concurrent terms of 9 months' imprisonment on each of two charges, one of driving under suspension and the other of driving under the influence of alcohol with a blood/alcohol content of 0.245%. The appellant (who had pleaded guilty) had 11 prior convictions for driving under suspension and nine for driving under the influence. On the other hand, in Anderson v Stilwell sentences of 8 months' imprisonment, to be served cumulatively, were imposed in respect of two counts of driving under suspension. A further term of 4 months' imprisonment also to be served cumulatively, was imposed on a third count of driving under suspension in circumstances in which there were very powerful mitigatory features. The appellant in that case had 11 prior convictions for driving under suspension. In Kearney the appellant was sentenced to cumulative terms of 8 months' imprisonment on two counts of driving under suspension. He had an extensive traffic record, including six prior convictions for driving whilst suspended.
In the present case the appellant has shown a repeated, and blatant, disregard for the law. Her history reveals that she ignores suspensions imposed upon her. However, we have said that, while her plea of guilty justified some reduction, it did not justify a substantial reduction given that a conviction was inevitable and that the plea was rightly found to have been unaccompanied by any real remorse or acceptance of responsibility. It is also a matter of considerable significance that the appellant had not previously been subjected to a term of imprisonment (albeit she might be regarded as having been extremely fortunate in that respect). Even given her repeated disregard for the law and for the penalties previously imposed upon her, it seemed to us that, in these circumstances, a sentence of imprisonment for a term close to the maximum available would not be warranted. We consequently imposed a sentence of 5 months' imprisonment. That sentence takes account of the effect of the transitional provisions.
As to the offence of reckless driving, appeals in respect of sentences imposed for such offences are relatively rare. There is consequently not a great deal of guidance to be obtained from the cases. In Forbes v Durant [1999] WASCA 85 McKechnie J said that it was difficult to discern a tariff or range of sentences most commonly imposed because of the relatively few appeals. He suggested that this may be because the area is one that is 'very much within the discretion of magistrates, who regularly deal with a wide variety of motoring offences and circumstances … ' [15]. In Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203 Wheeler J said:
First, I would make the general observation that it is very difficult to compare offences of reckless driving. In particular, however bad the driving may be, it is always possible to imagine a worse case ‑ higher speeds, or a longer pursuit, or contravention of a greater number of road traffic signs or traffic control lights or the like. The particular circumstances of each offence will be of considerable importance, and an examination of the cases … reveals that, even between serious offences characterised as being at the higher end of the scale, there is significant variation. [17]
In Forbes, the appellant (an 18‑year old who had pleaded guilty) had driven his car in a light industrial area at a speed of 175 kms per hour in an 80 km per hour speed zone. He had two passengers in his car and the offence was committed near a group of pedestrians. A $500 fine was imposed and the appellant was disqualified from holding a motor driver's licence for 10 months.
In Bakdadi v O'Neill [2003] WASCA 267 the appellant had persistently driven his car in a particularly dangerous manner, deliberately ramming another vehicle on no less than nine occasions. He also drove on the incorrect side of the road on seven occasions, forcing oncoming traffic to stop on one of those occasions. He was described as young (although his precise age is not stated in the judgment) and a person of good standing. He had pleaded guilty and demonstrated genuine and unqualified remorse. He was sentenced to a term of 4 months' imprisonment, suspended for a period of 18 months. The statutory maximum at the time of this offence (and at the time of that dealt with in Forbes) was one of 6 months' imprisonment.
In Anderson v The State of Western Australia [2005] WASCA 228 a sentence of 6 months' imprisonment had been imposed for a reckless driving offence (the maximum penalty had by then increased to 9 months' imprisonment for a first offence, with higher penalties for subsequent offences). While this sentence was not appealed against (the appeal involved other sentences imposed at the same time), the circumstances of the offence appear from the judgment. The appellant was observed by police while driving a stolen car. They followed his car and activated their lights and siren. The appellant drove on the incorrect side of the road towards oncoming traffic for approximately 500 metres before returning to the correct side of the road and coming across an intersection which had been blocked by police. His car came to a sudden stop before accelerating heavily into the rear of a police sedan. The appellant then reversed his car until it was in front of a second police car before accelerating forward once again and colliding with the first car on a second occasion. He pleaded guilty to the offence. He had been on parole at the time and had a long criminal history.
Jones v The State of Western Australia [2006] WASCA 181 is another case involving a stolen car. Police saw the appellant driving the car and activated their siren and emergency lights. The appellant accelerated heavily, driving along suburban streets at speeds of between 80 kms and 110 kms per hour in areas in which the maximum permitted speed was 50 kms per hour. He lost control of his car on three occasions, causing it to mount the kerb. There was some traffic on the road and numerous pedestrians were on the side of the road. At an intersection, the appellant drove over a speed calming device at 80 kms per hour, causing the stolen car to become airborne for approximately 11 m. He continued through back streets, narrowly missing a teenage pedestrian standing on a median strip. He eventually lost control of his car while attempting to round a corner at excessive speed. His car collided with the pursuing police car. He pleaded guilty. At the time of the offence he had been subject to an intensive supervision order. He was sentenced to a term of 3 months' imprisonment on the reckless driving charge. However, this formed part of a total sentence of 15 months' imprisonment imposed in respect of that and other offences, including the theft of the motor car, aggravated burglary and burglary.
The maximum sentence that might be imposed in the present case is 9 months' imprisonment: s 60(3)(a) of the Road Traffic Act 1974 (WA), amended by s 92(2) of the Sentencing Legislation Amendment and Repeal Act, and see cl 2(5)(a) of the transitional provisions. The appellant's conduct seems to us to have been serious. As Johnson J pointed out, the fact that no‑one was injured was more a matter of good luck than good management [79]. At one point in the course of the commission of this offence the appellant was driving at more than double the speed limit, notwithstanding that she had consumed a large quantity of alcohol. Even if this has not always been so until now, we consider that offences of this degree of seriousness should be severely dealt with. In the circumstances, there was a very real chance that someone would be killed. Allowing for the limited matters in mitigation, including the plea of guilty and the fact that the appellant has not previously been imprisoned, it seemed to us that the appropriate sentence was one of 5 months' imprisonment.
That left the conviction for unlawful damage to property. The appropriate sentence for this offence, too, had to be considered in the light of the appellant's criminal history. Amongst her other convictions are convictions for assault, for breach of a violence restraining order, for burglary and for disorderly conduct (two offences). Her conduct in damaging the complainant's home appears to have been entirely unprovoked. As Johnson J points out (at [60]), knowledge that someone was smashing the windows of her home would have terrified the 2‑year‑old child. Once again, the appellant failed to accept responsibility or to express any real remorse.
However, when the fact of the appellant's plea of guilty is taken with the fact that she had not previously committed an offence of this particular kind, the fact that she had not previously been imprisoned, the fact that the damage was relatively minor and the fact that the appellant left the property when asked to do so, it seemed to us that a sentence of immediate imprisonment for a term of 3 months was appropriate.
Ground 6
The conclusion at which we arrived in respect of ground 1 made it unnecessary for us to consider ground 6. However, it was, of course, necessary to have regard for the totality principle when re‑sentencing the appellant. That principle requires that sentences passed for individual offences should not be such as to result in an aggregate sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole: Postiglionev The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308 (McHugh J). It seemed to us that, in all of the circumstances of this case, an appropriate aggregate sentence was one of 10 months' imprisonment. We considered that that outcome should best be achieved by directing that the terms of imprisonment imposed in respect of the offences of driving under suspension and reckless driving should be ordered to be served cumulatively, but that the term of 3 months' imprisonment imposed in respect of the offence of unlawful damage to property should be served concurrently with those sentences. We consequently imposed sentences accordingly.
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