Mwiya v Guy

[2009] WASC 348

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MWIYA -v- GUY [2009] WASC 348

CORAM:   HALL J

HEARD:   19 NOVEMBER 2009

DELIVERED          :   19 NOVEMBER 2009

PUBLISHED           :  26 NOVEMBER 2009

FILE NO/S:   SJA 1102 of 2009

BETWEEN:   MWIYA JONES MWIYA

Appellant

AND

KEVIN JAMES GUY
First Respondent

DAVID MARK ALLEN
Second Respondent

SIMON DOMINIC TRAYNOR
Third Respondent

IAN STANLEY LYON
Fourth Respondent

MATTHEW JOHN DWYER
Fifth Respondent

FILE NO/S              :SJA 1103 of 2009

BETWEEN              :MWIYA JONES MWIYA

Appellant

AND

IAN STANLEY LYON
First Respondent

DAVID MARK ALLEN
Second Respondent

MATTHEW JOHN DWYER
Third Respondent

ON APPEAL FROM:

For File No               :  SJA 1102 of 2009

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE W G TARR

Citation  :PE 31790 of 2008, PE 31791 of 2008, PE 32587 of 2008, PE 38970 of 2008, FR 8360 of 2009, FR 8361 of 2009, FR 9842 of 2009

For File No               :  SJA 1103 of 2009

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE J R PACKINGTON

Citation  :PE 31790 of 2008, PE 31791 of 2008, PE 32587 of 2008, PE 38970 of 2008

Catchwords:

Criminal law - Appeal against sentence - Driving under influence of alcohol - Driving under suspension - Whether sentences excessive - Parole eligibility where prospect of deportation

Legislation:

Sentencing Act 1995 (WA), s 89(4)

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

SJA 1102 of 2009

Counsel:

Appellant:     Mr A J Robson

First Respondent           :     Ms S H Linton

Second Respondent       :     Ms S H Linton

Third Respondent         :     Ms S H Linton

Fourth Respondent        :     Ms S H Linton

Fifth Respondent          :     Ms S H Linton

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent       :     Director of Public Prosecutions (WA)

Third Respondent         :     Director of Public Prosecutions (WA)

Fourth Respondent        :     Director of Public Prosecutions (WA)

Fifth Respondent          :     Director of Public Prosecutions (WA)

SJA 1103 of 2009

Counsel:

Appellant:     Mr A J Robson

First Respondent           :     Ms S H Linton

Second Respondent       :     Ms S H Linton

Third Respondent         :     Ms S H Linton

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent       :     Director of Public Prosecutions (WA)

Third Respondent         :     Director of Public Prosecutions (WA)

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

R v Chi Sun Tsui (1985) 1 NSWLR 308

R v Shrestha [1991] HCA 26; (1991) 173 CLR 48

1. HALL J:  Mwiya Jones Mwiya has committed numerous offences of driving whilst under the influence of alcohol and driving whilst his licence was suspended. 

2. On 3 October 2008 Mr Mwiya appeared in the Magistrates Court at Perth and received a total sentence of 18 months' imprisonment suspended for two years.  On 17 August 2009 he appeared at the Magistrates Court at Fremantle and pleaded guilty to further offences.  The further offences were in breach of the suspended sentence and resulted in it being activated.  He received additional sentences of imprisonment for the new offences but they were made wholly concurrent.  The outcome was that Mr Mwiya received a total effective sentence of 18 months' imprisonment on 17 August 2009.  He was not made eligible for parole.  Mr Mwiya appealed against the sentences imposed upon him on both 3 October 2008 and 17 August 2009.  He was granted an extension of time in respect of the 2008 sentence. 

3. At the hearing of the appeals counsel for the respondents conceded that errors had occurred in sentencing.  I allowed the appeals, resentenced Mr Mwiya and said that I would publish my reasons at a later date.

Grounds of appeal

1. SJA 1103 of 2009 relates to the suspended sentence imposed on 3 October 2008.  The grounds in relation to that appeal are as follows:

   1.The Learned Magistrate erred in law by failing to adequately take into account the totality principle when setting the total suspended sentence of imprisonment for the Appellant.

   2.The suspended sentence of imprisonment imposed upon the Appellant was manifestly excessive taking into account the circumstances of the offending, the personal circumstances of the Appellant, the Appellant's record and the standards of sentencing for offending of this nature.

2. SJA 1102 of 2009 relates to the sentence of imprisonment imposed on 17 August 2009.  The grounds of appeal in respect of that appeal are as follows:

   1.The Learned Magistrate erred in law by failing to adequately take into account the totality principle when setting the total sentence for the Appellant.

   2.The sentence imposed upon the Appellant was manifestly excessive taking into account the circumstances of the offending, the personal circumstances of the Appellant, the Appellant's record and the standards of sentencing for offending of this nature.

3. At the hearing of the appeals there was an application for leave to add an additional ground to SJA 1102 of 2009.  There being no objection, leave was granted.  The additional ground is as follows:

   3.The Learned Magistrate erred in law in taking into account an irrelevant consideration when declining to order parole, namely that the Appellant was a foreign national with a prospect of deportation. 

Factual background

1. On 14 May 2008 Mr Mwiya drove a vehicle on Lake Street in Northbridge whilst under the influence of alcohol.  When stopped by police he refused to provide his name and address.  At this time he was subject to a court imposed disqualification of nine months that had been imposed in the Perth Magistrates Court on 28 February 2008.  He was placed under arrest and struggled violently when attempts were made to place him into the rear of a police van.  A test subsequently confirmed that Mr Mwiya's blood alcohol was 0.225 g per 100 ml, or four times the legal limit.  He was released on bail and required to appear in court on 20 May 2008. 

2. On the following day, 15 May 2008, Mr Mwiya was again apprehended driving whilst under the influence of alcohol.  The charges refer to a car with the same vehicle registration number being driven in the same street.  Whilst the papers do not disclose the times of these offences it seems that Mr Mwiya must have returned to his car within hours of being arrested and released on 14 May 2008.  He was arrested again and charged with further offences of driving under the influence of alcohol and driving whilst disqualified.  On this occasion his blood alcohol reading was 0.208 g per 100 ml.  He was again bailed to appear on 20 May 2008.  On this occasion a condition was added to his bail that he not drive any motor vehicle; he was, of course, already prohibited from doing so.

3. On 18 June 2008 Mr Mwiya drove his vehicle through a red traffic light on Walcott Street in Mount Lawley.  He initially failed to stop when called upon.  When he was apprehended he was found to be driving an unlicensed vehicle and to be driving that vehicle contrary to a compliance notice which he had removed.  A breath test determined that he had a blood alcohol reading of in excess of 0.05 g per 100 ml; the reading was in fact 0.073 g per 100 ml.  He was also driving whilst still the subject of the disqualification order made in February of that year.  He had also failed to appear in the Perth Magistrates Court on 20 May 2008 as required in respect of the earlier charges.  This resulted in a further eight charges.

4. The 14 charges arising out of the incidents on 14 and 15 May and 18 June 2008 were dealt with on 3 October 2008. 

Sentences of 3 October 2008 - SJA 1103 of 2009

1. Mr Mwiya pleaded guilty to all charges.

2. The magistrate was advised that Mr Mwiya had moved to Australia from Zambia in 2004 to study finance and economics at Edith Cowan University.  He had no experience of alcohol prior to coming to Australia.  Within 2 ‑ 3 months of his arrival he began consuming alcohol to the extent that he recognised it had become a serious problem.  His counsel advised the magistrate that Mr Mwiya had a genuine desire to address his alcohol issues and wanted to engage in counselling.  It was said that he had changed some of his friends with a view to trying to avoid binge drinking.  He had also sold his vehicle and it was submitted that he would not be driving anymore.

3. The magistrate imposed the following penalties:

Charge no	Date of offence	Description of offence	Penalty
31788/08	14/5/08	Refused to supply name and address s 53(1)(a) RTA 1974	Fine $200
31789/08	14/5/08	Driving whilst disqualified s 49(1)&(2)(a)(iii) RTA	Community based order of 9 months with supervision and program requirements.  License disqualification of 3 years

Charge no	Date of offence	Description of offence	Penalty
31790/08	14/5/08	Driving under the influence of alcohol s 63(1) RTA	9 months' imprisonment suspended for 2 years.  License disqualification of 2 years cumulative
31791/08	14/5/08	Obstructing a public officer s 172(2) Criminal Code	3 month's imprisonment concurrent suspended for 2 years
32587/08	15/5/08	Driving under the influence of alcohol s 63(1) RTA	9 months' imprisonment cumulative suspended for 2 years.  License disqualification of 2 years cumulative
32588/08	15/5/08	Driving whilst disqualified s 49(1)&(2)(a)(iii) RTA	Community based order of 9 months with supervision and program requirements.  License disqualification of 3 years cumulative
38963/08	18/6/08	Contravening a red light Reg 40(1) RT Code 2000	Fine $150
38964/08	18/6/08	Failing to stop s 53(1)(b) RTA	Fine $200
38965/08	18/6/08	Driving an unlicensed vehicle s 15(3) RTA	Fine $100 and half license free ($65.15)
38966/08	Driving contrary to a compliance notice Reg 66(1) RT (Vehicle Standards) Regulations 2002	Fine $600

Charge no	Date of offence	Description of offence	Penalty
38967/08	18/6/08	Removing a compliance notice Reg 64(2)(c) RT (Vehicle Standards) Regulations 2002	Fine $400
38968/08	18/6/08	Driving whilst blood alcohol exceeded 0.05 g per 100 ml s 64AA(1) RTA	Fine $100
38969/08	18/6/08	Driving whilst disqualified s 49(1)&(2)(a)(iii) RTA	Community based order of 9 months with supervision and program requirements and 120 hours community service work.  License disqualification of 3 years cumulative
38970/08	18/6/08	Breach of bail undertaking s 51(1) Bail Act 1982	1 month's imprisonment concurrent suspended for 2 years

1. Whilst this appeal relates only to the sentences of imprisonment, it is relevant to take into account the whole of the conduct.  It was very serious conduct and displayed a blatant disregard for the law.  Sentences of imprisonment for some of the more serious offences were clearly open. 

2. The problem was not with the choice of disposition but the lengths of the terms that were imposed. In particular, the magistrate imposed sentences of 9 months on each of the offences of driving under the influence of alcohol. At the time Mr Mwiya came to be sentenced for these offences he had one prior conviction. Accordingly the maximum penalty available under s 63(2)(b) of the Road Traffic Act 1974 (WA) was 9 months' imprisonment. Thus the sentences imposed for each of those charges was the maximum available.

3. To impose such a sentence in this case failed to take into account two significant factors.  Firstly, Mr Mwiya had pleaded guilty at the first available opportunity and it would be expected that such a plea would be deserving of some measure of discount.  Secondly, at the time these sentences were imposed, the so‑called transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) required that any sentence that would have been imposed, had the previous sentencing regime been in operation, be reduced by one‑third. The magistrate made no adjustment in this regard. The fact that the sentences were suspended did not obviate the need to make the deduction. It is for these reasons that the respondents conceded that there was an error in sentencing on 3 October 2008.

Further offending

1. In the early hours of the morning on Wednesday 20 May 2009 Mr Mwiya drove a vehicle on Gold Street in Fremantle.  He was stopped for a random breath test and was found to have a blood alcohol reading of 0.157 g per 100 ml.  He was also driving whilst the subject of the suspensions ordered on 3 October 2008.  He was released on bail to appear in the Fremantle Magistrates Court on 28 May 2009.  He failed to appear and was later charged with a breach of his bail undertaking.  These offences were in breach of the suspended sentences of imprisonment imposed on 3 October 2008. 

Sentences of 17 August 2009 - SJA 1102 of 2009

1. On 17 August 2009 Mr Mwiya came before the Magistrates Court in Fremantle for sentencing on the further offences, having pleaded guilty.

2. The magistrate expressed the view that he had no alternative but to breach Mr Mwiya on the suspended terms of imprisonment and sentence him to 9 months in respect of each of those two offences cumulative.  A question was raised as to whether that was the maximum sentence then available and there was a reference to when the law had changed.  It would appear that this was a reference to the requirement to reduce a sentence under the transitional provisions.  However, there appears to have been a misapprehension as to the date upon which those provisions became operative and as a consequence the defect in the original sentences was not appreciated. 

3. The magistrate imposed additional sentences of imprisonment for the new offences but made them wholly concurrent having regard to totality.  The sentences imposed for the new offences were as follows:

Charge no	Date of offence	Description of offence	Penalty
8360/09	20/5/09	Driving whilst disqualified s 49(1)(a)&(3)(c) RTA	8 months' imprisonment concurrent.  License disqualification 12 months cumulative
8361/09	20/5/09	Driving under the influence of alcohol s 63(1) RTA	6 months' imprisonment concurrent.  License disqualification for life
9842/09	20/5/09	Breach of bail s 51(1) Bail Act	1 month's imprisonment concurrent

1. The magistrate considered whether to make Mr Mwiya eligible for parole and stated:

   It's probably enough so on the current matters I'm going to impose concurrent sentences because it seems to me that whatever sentence you serve you will be deported as soon as you're free to leave, and for that reason I don't believe it's appropriate for me to make you eligible for parole because if you are released and deported then parole is not an issue.

Parole eligibility

1. Section 89(4) of the Sentencing Act 1995 (WA) provides that:

   A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -

   (a)the offence is serious;

   (b)the offender has a significant criminal record;

   (c)the offender, when released from custody under a release order made previously, did not comply with the order;

   (d)any other reason the court considers relevant.

2. The magistrate did not refer to this provision.  The circumstances of the offending and the criminal record would not appear to have justified a conclusion that parole was not open.

3. Whilst a court can take into account any other reason that it considers relevant under s 89(4)(d) of the Sentencing Act, the prospect of deportation is not a factor relevant to determination of whether a person should be eligible for parole:  R v Chi Sun Tsui (1985) 1 NSWLR 308.

4. In R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 Deane, Dawson and Toohey JJ rejected an argument that it would be inappropriate to make a person eligible for parole who is liable to immediate deportation upon their release from prison. Their Honours noted that compulsory deportation of a prisoner was something that was beyond the control of the prisoner but arguably within the control of government. There could be cases where compassionate considerations might justify release on parole. Other circumstances, such as reform whilst in prison and the likelihood of rehabilitation could also arise notwithstanding prospective deportation on release. The release of a prisoner in these circumstances would obviously be more in the interests of both the prisoner and the community than continued imprisonment at community expense. Their Honours also referred to the nature of the discretion to make an eligibility order and said:

   [A] sentencing judge is not ordinarily required or empowered to determine whether a convicted person should in fact be released on parole at some future time.  He or she is concerned to decide whether a prisoner should be eligible to be considered for release on parole at that future time.  The likelihood of deportation, the lack of ties with this country and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are all factors which will properly be taken into account by a parole authority when considering, at that time, whether the prisoner should be actually released on parole (72 ‑ 73).

Conclusion

1. The magistrate on 3 October 2008 erred in imposing suspended sentences of 9 months' imprisonment on charges 31790/08 and 32587/08 in that those sentences failed to take into account reductions required by the pleas of guilty and the transitional provisions.  The magistrate on 17 August 2008 erred in activating those suspended sentences and in declining to order eligibility for parole on the basis of the likely deportation of Mr Mwiya.

Resentencing

1. At the hearing of these appeals information was provided that indicated that the range for multiple offences of driving under the influence of alcohol and driving under suspension where there was a significant history of similar offending comparable to this case was between 8 and 24 months.  The cases at the higher end of this range involved either more prior offences or prior terms of imprisonment.  Having regard to the fact that the maximum penalty for the driving under the influence offences committed on 14 and 15 May 2008 was 9 months' imprisonment, that pleas of guilty were entered at an early stage and that Mr Mwiya had not previously been imprisoned, the appropriate sentences for these two offences, in my view, was 3 months' imprisonment on each charge (cumulative).  The offences committed on 20 May 2009 were also deserving of imprisonment, particularly as they represented a serious disregard for the law having regard to the earlier conduct.  They were also deserving of a measure of cumulation.  It is clear that the magistrate on 17 August 2009 made the sentences he imposed wholly concurrent having regard to the activated suspended sentence of 18 months.

2. At the hearing of these appeals I resentenced Mr Mwiya by setting aside the sentences on 31790/08 and 32587/08 of 9 months' imprisonment in each case and also setting aside the sentence on 8360/09 of 8 months' imprisonment concurrent.  In lieu thereof I imposed the following sentences:

   Charge 31790/08           3 months' imprisonment.

   Charge 32587/08           3 months' imprisonment cumulative.

   Charge 8360 /09             6 months' imprisonment cumulative.

3. The remaining sentences (which are all concurrent) will remain undisturbed as will the orders for licence disqualification. 

4. The total effective sentence therefore is one of 12 months' imprisonment and I ordered that Mr Mwiya be eligible for parole.  A total of 10 days was spent in custody prior to Mr Mwiya being sentenced for these offences on 17 August 2009 and I therefore backdated the sentence to commence on 7 August 2009.