MELEKA v Wright
[2012] WASC 69
•29 FEBRUARY 2012
MELEKA -v- WRIGHT [2012] WASC 69
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 69 | |
| 29/02/2012 | |||
| Case No: | SJA:1076/2011 | 13 FEBRUARY 2012 | |
| Coram: | HALL J | 13/02/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced to 9 months' imprisonment | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL MELEKA EMMA VICTORIA WRIGHT |
Catchwords: | Criminal law Traffic offences Driving whilst suspended 18 previous similar offences Sentence of imprisonment appropriate Sentence imposed in Magistrates Court exceeded statutory maximum penalty Appropriate range |
Legislation: | Road Traffic Act 1974 (WA), s 49 |
Case References: | Mears v Holleman [2010] WASC 39 Sheiner v Roberts [2009] WASC 281 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
EMMA VICTORIA WRIGHT
Respondent
ON APPEAL FROM:
For File No : SJA 1076 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G N CALDER
Citation : MI 5833/11
Catchwords:
Criminal law - Traffic offences - Driving whilst suspended - 18 previous similar offences - Sentence of imprisonment appropriate - Sentence imposed in Magistrates Court exceeded statutory maximum penalty - Appropriate range
(Page 2)
Legislation:
Road Traffic Act 1974 (WA), s 49
Result:
Appeal allowed
Appellant resentenced to 9 months' imprisonment
Category: B
Representation:
Counsel:
Appellant : Mr G W Massey
Respondent : Ms A E Johnson
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Mears v Holleman [2010] WASC 39
Sheiner v Roberts [2009] WASC 281
(Page 3)
1 HALL J: (This judgment was delivered extemporaneously and has been edited from the transcript.)
2 This is an appeal against a sentence of 20 months' imprisonment imposed in the Magistrates Court on 29 July 2011. On that day the appellant pleaded guilty to one charge of driving whilst under a court imposed suspension, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA).
3 The maximum sentence for the offence of driving whilst disqualified, where the offender has been previously convicted of such an offence, is a fine of between 20 and 80 penalty units and imprisonment for 18 months: s 49(1)(c)(ii) Road Traffic Act. The sentence in this case was above the statutory maximum and was therefore clearly in error.
4 The respondent quite properly concedes that the appeal must be allowed and the appellant resentenced. Whilst there are other grounds of appeal, it is unnecessary to consider them. The real issue is what sentence should now be imposed.
5 The appellant has a long and unfortunate history of driving whilst disqualified. The first such offence was committed in May 2000 when the appellant was 18 years old. The present conviction was his 19th such offence. He has previously been sentenced to terms of imprisonment. Such sentences have been imposed as follows:
1. On 18 December 2001 the appellant was sentenced in relation to two counts of driving whilst under suspension to two terms of 6 months' imprisonment, suspended for a period of 12 months.
2. On 21 September 2004 the appellant was sentenced on one count of driving whilst under suspension to a term of 10 months' immediate imprisonment.
3. On 20 December 2005 the appellant was sentenced on two counts of driving whilst under suspension to terms of 12 months' immediate imprisonment, with those terms to be served concurrently.
4. On 18 July 2007 the appellant was convicted of five counts of driving whilst suspended and sentenced to 12 months' imprisonment on one count and 9 months' imprisonment on each of the other four counts with all terms to be served concurrently.
(Page 4)
- 5. On 7 November 2007 the appellant was convicted of one count of driving whilst disqualified and was sentenced to 4 months' imprisonment.
6. On 17 June 2009 the appellant was convicted of five counts of driving whilst suspended and was sentenced to 6 months' imprisonment on each count, three of which were made cumulative producing an effective total sentence of 18 months' imprisonment.
7. Finally, on 14 October 2009 the appellant was convicted of one offence of driving whilst suspended and sentenced to 5 months imprisonment, with that term to run concurrently with the offences for which the appellant was convicted on 17 June 2009.
6 On each of these occasions the appellant was also sentenced for other offences, predominantly of a traffic nature.
7 When sentenced for the present offence, it appears that the magistrate considered that a sentence higher than the 18 months imposed on 17 June 2009 was required as that sentence had not sufficiently deterred the appellant from driving whilst suspended. Quite apart from the fact that the sentence imposed on the occasion under appeal exceeded the maximum statutory penalty, the magistrate also appears not to have taken into account that the 18 months previously imposed was for five offences, not one, and was an aggregate sentence consisting of three cumulative 6 month sentences and two concurrent 6 month sentences.
8 The appellant does not contend that any sentence other than one of imprisonment is appropriate here. The issue is how long should such a sentence be. Bearing in mind the ranges of sentences referred to in Sheiner v Roberts [2009] WASC 281 and Mears v Holleman [2010] WASC 39 I am satisfied that a sentence significantly lower than that imposed by the magistrate is appropriate.
9 I take into account, in determining the appropriate sentence, that the appellant did plead guilty and is deserving of consideration in that regard. I also note that this offence involved a single instance whereas on other occasions the appellant has been charged with multiple offences. Furthermore, on previous occasions he appears to have sought to conceal his offence by misleading or being dishonest with the police and that has resulted in additional charges in that respect.
(Page 5)
10 On the other hand, there is clearly a need for significant personal deterrence and offences of this nature should not be considered to be insignificant, particularly where there has been a persistent course of conduct over many years, as there has been here. The appellant, of course, does not fall to be punished again for his prior offences, however, they do indicate that he has shown an ingrained disrespect for the law. Accordingly any penalty that is imposed upon him must act as a real deterrent to commit offences of this nature again.
11 I take into account the factual circumstances of this offending. Mr Massey tells me that it occurred in circumstances where the appellant was faced with a situation where he had deliveries to make in respect of the sound system business that he works for. This required him to be at different locations within a short time with no alternative driver available. In those circumstances he made a decision to drive. It was a bad decision but one that was not made casually. Nonetheless, it is conceded that the circumstances did not excuse the conduct and that a sentence of immediate imprisonment was appropriate.
12 The sentence that I intend to impose is one of 9 months' imprisonment. It will be backdated to commence on 29 June 2011. The 2 year cumulative suspension that was imposed by the magistrate will stand.
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