McShane v Greig

[2009] WASC 310

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MCSHANE -v- GREIG [2009] WASC 310

CORAM:   HALL J

HEARD:   13 OCTOBER 2009

DELIVERED          :   13 OCTOBER 2009

PUBLISHED           :  20 OCTOBER 2009

FILE NO/S:   SJA 1088 of 2009

BETWEEN:   GEORGE WILLIAM MCSHANE

Appellant

AND

LIAM PATRICK GREIG
First Respondent

MITCHELL MARK DERRICK
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE D R V TEMBY

Citation  :RO 11873 of 2008, PE 36373 of 2009, PE 36376 of 2009

Catchwords:

Criminal law - Appeal against sentence - Driving under suspension - Suspended sentence activation - Whether total sentence excessive

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr A J Robson

First Respondent           :     Ms R Young

Second Respondent       :     Ms R Young

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     State Solicitor for Western Australia

Second Respondent       :     State Solicitor for Western Australia

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

Nil

HALL J: 

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. On 22 January 2009, Mr McShane appeared in the Magistrates Court at Rockingham and was sentenced for an offence of driving whilst under suspension contrary to s 49(1)(c)(ii) of the Road Traffic Act 1974 (WA). The offence was his sixth of that type. The sentence was one of 9 months' imprisonment suspended for a period of 12 months.

2. On 3 June 2009 and again on 5 June 2009, Mr McShane committed further offences of driving under suspension.  He also committed other offences at around the same time that are not the subject of this appeal.  He pleaded guilty to all charges on 10 June 2009 and was sentenced on 8 July.

3. The further offences were in breach of the suspended sentence of 22 January 2009.  On 8 July Mr McShane was sentenced as follows: 

   1.for the driving under suspension of 3 June - 12 months' imprisonment eligible for parole and 12 months' licence disqualification cumulative;

   2.for the driving under suspension on 5 June 2009 - 3 months' imprisonment cumulative with parole eligibility with a further 12 months' licence disqualification cumulative; and

   3.for breaching the suspended sentence of 22 January - 12 months' imprisonment cumulative with parole eligibility. 

4. The total sentence was therefore one of 2 years, 3 months, or 27 months. 

Grounds of appeal

1. Mr McShane has appealed against the sentences imposed.  The grounds are as follows: 

   1.the learned magistrate erred in fact and law when imposing imprisonment for breach of a suspended sentence by imposing 12 months' imprisonment when the period of imprisonment specified in the suspended sentence was 9 months' imprisonment;

   2.the learned magistrate erred in law by imposing sentences which individually and in aggregate were manifestly excessive in light of the circumstances of the offences, the personal circumstances of the appellant and sentencing standards in similar cases; and

   3.the learned magistrate erred in law by imposing sentences of the length imposed and making those sentences cumulative upon each other by failing to adequately take into account the totality principle.

2. Essentially, the issues are whether it was an error to impose 12 months for the breach of suspended sentence when the original sentence suspended on 22 January was one of 9 months and whether the sentences imposed individually and in aggregate are excessive. 

Ground 1 - suspended sentence

1. Section 80 of the Sentencing Act 1995 (WA) provides for the powers of a court when dealing with a breach of a suspended sentence. One of those powers is to order that the person serve the term that was suspended. Subsection 80(3) requires that such an order be made unless the court decides it would be unjust to do so in all of the circumstances. There is no power to order a sentence of imprisonment greater than the sentence that was suspended. Accordingly, any order to serve the suspended sentence should have been one for 9 months and not 12. It appears that the magistrate may have been confused as to whether the suspended sentence was one of 9 months or 12 months. In any event, he made a clear error. The respondents, very properly, accept that ground 1 must be allowed.

Grounds 2 and 3 - excessive sentence

1. The maximum penalty for offences of this type is a fine of 80 penalty units or imprisonment for 18 months.  Where an offender has committed multiple offences, sentences of between 2 and 8 months for individual offences have been imposed, the higher end of the range usually being imposed where there has been a blatant disregard of the law.  Aggregate sentences ranging between 9 and 20 months have been imposed. 

2. Where dealing with multiple offences a court needs to ensure that the aggregate sentence is in proper proportion to the overall criminality.  The cumulation of sentences otherwise appropriate looked at individually can produce a total sentence which exceeds what is appropriate.  In order to obviate this courts may need to review individual sentences and either reduce them or make orders that sentences be served concurrently so as to ensure that the aggregate sentence is appropriate.

3. In the present case the respondents also concede, again quite properly, that the aggregate sentence of 27 months was outside the range appropriate for these types of offences.  The range, of course, is only indicative and not prescriptive as to the sentencing discretion to be exercised.  It may be open in some cases to go outside the range, otherwise the maximum penalties permitted by Parliament would not be allowed their full effect.

4. However, I am satisfied in the circumstances of this case that the total sentence of 27 months was excessive and was a sentence that was disproportionately high.  Therefore, grounds 2 and 3 also succeed.  In these circumstances the appeal must be allowed and Mr McShane must be resentenced. 

Resentencing

1. In resentencing I take into account Mr McShane's personal circumstances, that he is the father of three young children in a de facto relationship and his partner is in stable housing and is prepared to have him back. 

2. I also take into account that Mr McShane has been a persistent offender of this type of offence.  I note in this regard that he has eight prior convictions for driving whilst having no authority to drive or while driving under suspension, two prior convictions for driving without a motor driver's licence and two prior convictions for driving whilst under fine suspensions. 

3. Considerations of personal and general deterrence are obviously significant in these circumstances.  Offences of this type cannot be tolerated by the community and Mr McShane requires some personal deterrence in order to ensure that he does not commit offences of this type in the future.  I note that the pre‑sentence report indicates that he has shown a blatant disregard for the directions of the law in this respect.  I also note that Mr McShane has previously served a sentence of imprisonment for traffic offences although it was for a relatively short period. 

4. I accept that these offences were not accompanied by any aggravating circumstances, such as reckless driving or driving whilst under the influence of alcohol and that Mr McShane pleaded guilty at what appears to have been the earliest opportunity and he deserves credit for that.

Conclusion

1. The orders of the court will be that the sentences of imprisonment of the magistrate will be set aside.  The orders for disqualification of licence are not set aside. 

2. In regard to the suspended sentence the order of the court will be that the sentence of 9 months suspended on 22 January will be activated and so the order will be that Mr McShane is to serve that sentence of 9 months' imprisonment. I have considered whether there were any circumstances under s 80(3) that justified the court doing anything other than impose that 9 months' imprisonment and I am not satisfied that there is any good reason not to do so.

3. In regard to the offences of 3 June and 5 June, the sentences that I will impose will be very significantly reduced for totality reasons.  The sentence for the 3 June offence will be one of 3 months' imprisonment and that sentence will be cumulative.  The sentence for the 5 June offence will be one of 6 months' imprisonment concurrent. 

4. That produces a total sentence of 12 months' imprisonment and I order that Mr McShane be eligible for parole and that the sentence be backdated to commence on 6 June 2009.