Neves v Rogers
[2013] WASC 440
•9 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: NEVES -v- ROGERS [2013] WASC 440
CORAM: BEECH J
HEARD: 3 DECEMBER 2013
DELIVERED : 3 DECEMBER 2013
PUBLISHED : 9 DECEMBER 2013
FILE NO/S: SJA 1122 of 2013
BETWEEN: NELIO JOSE NEVES
Appellant
AND
PETER EDWARD ROGERS
First RespondentMARK JOHN OVERSBY
Second RespondentJASON STEPHEN BULL
Third Respondent
FILE NO/S :SJA 1135 of 2013
BETWEEN :NELIO JOSE NEVES
Appellant
AND
JASON STEPHEN BULL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :FR 10781 of 2012, FR 146 of 2013, FR 3745 of 2013
Catchwords:
Criminal law and sentencing - Driving without a licence - Driving with licence that has ceased - Repeat offender - Errors in sentencing remarks - Appropriate sentence
Legislation:
Road Traffic Act 1974 (WA), s 49
Result:
Appeal upheld
Appellant resentenced
Category: D
Representation:
SJA 1122 of 2013
Counsel:
Appellant: Mr A J Robson
First Respondent : Ms H C Richardson
Second Respondent : Ms H C Richardson
Third Respondent : Ms H C Richardson
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
SJA 1135 of 2013
Counsel:
Appellant: Mr A J Robson
Respondent: Ms H C Richardson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bell v Wesley [2007] WASC 264
Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Gable v Nardini [2010] WASC 321
Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530
Logan v Kuser [2008] WASC 65
Mears v Holleman [2010] WASC 39
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Palmer v Dwyer [2010] WASC 28
Roffey v The State of Western Australia [2007] WASCA 246
Vella v The State of Western Australia [2006] WASCA 129
Vince v Martyn [2013] WASC 60
Yuksel v Marchesani [2011] WASC 57
BEECH J: On 10 September 2013, in the Fremantle Magistrates Court, the appellant pleaded guilty and was convicted of six driving offences and one related offence. Three of the offences were of driving without a licence. The appellant was sentenced to a total term of 12 months and 1 day imprisonment, to be served immediately.
The appellant appeals against his sentence. He also appeals against one of his convictions. At the hearing of the appeals, the respondents conceded the appeal against conviction and two of the grounds of appeal against sentence.
At the hearing, I upheld the appeals and resentenced the appellant to a total effective term of 7 months. These are my reasons for doing so.
The charges
The appellant was convicted, on his plea of guilty, of the following offences:
(1)on 7 September 2012 driving an unlicensed vehicle in contravention of s 15(3) of the Road Traffic Act 1974 (WA) ($200 fine);
(2)on 7 September 2012 driving while not authorised to do so in contravention of s 49(1)(a) and 49(3)(c) of the Road Traffic Act (6 months and 1 day imprisonment; MDL disqualification 12 months cumulative);
(3)on 24 November 2012 driving while not authorised to do so, in contravention of s 49(1)(a) and 49(3)(b) of the Road Traffic Act (6 months' imprisonment cumulative; MDL disqualification 12 months cumulative);
(4)on 12 February 2013 driving while not authorised to do so, in contravention of s 49(1)(a) and (3)(b) of the Road Traffic Act (6 months' imprisonment, concurrent; MDL disqualification 12 months cumulative);
(5)on 12 February 2013 driving an unlicensed vehicle in contravention of s 15(3) of the Road Traffic Act ($200 fine);
(6)on 12 February 2013 giving false personal details to police in contravention of s 16(8) to the Criminal Investigation (Identifying People) Act 2002 (WA) ($200 fine); and
(7)on 12 February 2013 driving a vehicle with fraudulently altered number plates, in contravention of s 97(f)(i) of the Road Traffic Act ($200 fine).
The legislation
Section 49 of the Road Traffic Act provides, relevantly, as follows:
(1)A person who -
(a)drives a motor vehicle on a road while not authorised under Part IVA to do so; or
(b)employs or permits another person to drive a motor vehicle as described in paragraph (a),
commits an offence.
Penalty:
(a)unless subsection (3) applies -
(i)for a first offence, 6 PU;
(ii)for a subsequent offence, 12 PU;
(b)if subsection (3)(d), but no other paragraph of subsection (3), applies -
(i)a fine of not less than 4 PU or more than 30 PU; and
(ii)imprisonment for not more than 12 months,
and the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years;
(c)if subsection (3)(a), (b), or (c) applies -
(i)for a first offence, a fine of not less than 8 PU or more than 40 PU, and imprisonment for not more than 12 months;
(ii)for a subsequent offence, a fine of not less than 20 PU or more than 80 PU, and imprisonment for not more than 18 months,
and the court shall 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.
(2)It is a defence to a charge of an offence under subsection (1) to prove that the motor vehicle was driven in accordance with -
(a)regulations referred to in section 44(1); or
(b)a necessity permit under section 49A.
(3)If an offence under subsection (1)(a) is committed by a person -
(a)who has applied for, but has been refused, an Australian driver licence of a kind required; or
(b)who has never held an Australian driver licence of a kind required and is disqualified from holding or obtaining an Australian driver licence of a kind required other than for the reason described in paragraph (d) or who has held an Australian driver licence of a kind required but ceased to hold the licence of that kind most recently held other than-
(i)because the person voluntarily surrendered the licence most recently held or it expired; or
(ii)for the reason described in paragraph (d);
or
(c)whose authority to drive, whether under an Australian driver licence or otherwise, is for the time being suspended other than for the reason described in paragraph (d); or
(d)who is no longer authorised to drive because of penalty enforcement laws, as described in subsection (9),
a member of the Police Force may, without a warrant, arrest the person.
...
(6)An offence under subsection (1) is a subsequent offence if the offender has previously been convicted of any offence under that subsection as in force at any time, except that, if subsection (3)(a), (b), or (c) applies to an offence under subsection (1)(a), the offence is a subsequent offence only if the person has previously been convicted of a relevant offence.
(7)In subsection (6) -
relevant offence means -
(a)an offence under subsection (1)(a) as in force after the commencement of section 7 of the Road Traffic Amendment Act 20061 being an offence to which subsection (3)(a), (b), or (c) applied; or
(b)an offence under subsection (1)(a) as in force at a time before the commencement of section 7 of the Road Traffic Amendment Act 20061 being an offence that would have been taken into account in determining whether another offence committed before that commencement, in circumstances mentioned in section 49(2)(a)(ii) or (iii) or (2)(b) as then in force, would have been a first or subsequent offence.
...
(9)When subsection (3)(d) refers to a person who is no longer authorised to drive because of penalty enforcement laws, it means that the person -
(a)has been disqualified from holding or obtaining a driver's licence under section 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994; or
(b)is the subject of any disqualification or suspension under a law of another jurisdiction that is prescribed to be a corresponding law for the purposes of this subsection.
The effect of s 49 is that for subsequent offences, the maximum penalty for an offence of driving when the offender's licence has been suspended under fines enforcement is 12 months (s 49(1)(b)). For subsequent offences of driving while a licence is otherwise suspended, or driving by a person who had a driver's licence that has ceased to operate, the maximum penalty is 18 months' imprisonment and a fine of not less than $1,000 or more than $4,000 (s 49(1)(c)(ii)).
The appellant's previous convictions
The appellant has a long history of previous offences of driving when not licensed to do so. His record is summarised in the following table in the appellant's submissions.[1]
[1] Appellant's submissions on sentence [21].
| Conviction no for agg unlicensed driving | Result date | Offence date | Offence | Sentence |
| 5th | 09.03.10 | 01.02.10 | No authority to drive - Cancelled: pursuant to s 49(1)(a) & (3)(b) Road Traffic Act 1974 | MDL Disqualified: 9 months Fine: $2000 |
| 4th | 11.02.09 | 17.12.08 | No authority to drive - Disqualified/Suspended: pursuant to s 49(1)(a) & (3)(c) Road Traffic Act 1974 | MDL Disqualified: 9 months Fine: $2000 |
| 3rd | 22.08.08 | 10.07.08 | No authority to drive - Fines suspension: pursuant to s 49(1)(a) & (3)(d) Road Traffic Act 1974 | MDL Disqualified: 6 months Fine: $400 |
| 2nd | 25.09.01 | 01.08.01 18.09.01 | No MDL - Under suspension: pursuant to s 49(1)(a) & (2)(a) Road Traffic Act 1974 No authority to drive - Under suspension: pursuant to s 49(1)(a) & (2)(a) Road Traffic Act 1974 | 4 months IMP SUSP for 12 months MDL Disqualified: 9 months |
| 1st | 09.06.00 | 13.05.00 | No MDL - Under Suspension: pursuant to s 49(1)(a) & (2)(a) Road Traffic Act 1974 | MDL cancelled & Disqualified 9 months Fine: $400 |
| 1st | 25.05.00 | 19.05.00 | No MDL - Under Suspension: pursuant to s 49(1)(a) & (2)(a) Road Traffic Act 1974 | MDL cancelled & Disqualified 9 months Fine: $400 |
The hearing before the magistrate
The appellant pleaded guilty. In the course of the plea in mitigation, the following matters were raised as to the appellant's personal circumstances:
(1)he was 31 at the time of sentencing;
(2)he has three young children;
(3)he had been in a stable relationship for about 12 years. His partner is unemployed and looks after the children;
(4)he was the sole income earner in their household, although he had lost his job at around the time of the offending behaviour;
(5)on one occasion he was attempting to sell a car that he owned in order to improve his family's poor financial situation; and
(6)the appellant contributed to the community through the Fremantle Junior Rugby League Club.[2]
[2] ts 10 September 2013, page 6.
The magistrate's sentencing remarks
In sentencing the appellant, the learned magistrate said as follows:[3]
[3] ts 10 September 2013, page 9 ‑ 10.
HIS HONOUR: ... The other matters to which you have pleaded guilty, which are numerous charges; three counts of driving commonly known under suspension, two counts of driving unlicensed vehicle, using a forged numberplate and giving false details. I must take into consideration your record, which indicates that you were convicted for offences of driving under suspension in 2000, two counts, 2001, two counts. 2009 and 2010.
What exacerbates the seriousness of your offending on these occasions is the fact that you were on bail on some of the occasions on which you committed further offences, which occurred in September 2012, November 2012 and February 2013. So one can only glean from the circumstances that you have totally and utterly disregarded the law and you have treated orders made by the courts in previous instances with utter contempt.
Now, I accept that you may have been under financial difficulty, that you have family to support. That is not an unusual situation. It might be a difficult situation and you might have had to sell this vehicle, but you didn't have to drive it to sell it, in one instance, and I can only infer from all the information that’s been brought here, that you've simply taken the chance, treated the law with contempt, treated the orders disqualifying you from driving with contempt and continued to drive.
These, for sentencing purposes, are your sixth conviction for driving under suspension over a substantial period of time and it would seem, from the penalties which have been imposed on past occasions, that you have not been deterred from complying or not complying with the law in this respect. I believe in all the circumstances there is only one appropriate disposition and that is one of imprisonment, taking into account those relating to your offending and those relating to your personal circumstances.
I'm going to give you a discount at the lower end of the scale, Mr Neves, for the pleas of guilty, because they are not early pleas of guilty, because you have been before the courts in one instance since October last year, about 12 - 11, 12 months. But I will in any event give you discount for the pleas of guilty. In relation to the first count, that is 10781, you're sentenced to six months and one day imprisonment and you are disqualified for 12 months cumulative.
On charge 146 you are sentenced to six months imprisonment cumulative and you are again disqualified for 12 months cumulative. In relation to the third count, you are also sentenced to 6 months imprisonment, but it shall be concurrent and you will be disqualified for 12 months cumulative. In relation to the other offences, driving an unlicensed vehicle, you're fined $200. On charge 3746 half license fee of 107.37. For giving the false name, fined $200 and using the fraudulent plats, $200.
On the first count of using unlicensed vehicle, 10780, you're fined $200 and there's half annual license fee of 146.55. There are no orders for costs. As a matter of law, I must consider whether or not that sentence for imprisonment, which totals 12 months - 12 months means that you have been sentenced to 12 months because of the period over which you have continued to offend and because of your record - as to whether or not that sentence in total should be suspended.
In determining that, I must take into consideration your family situation and those circumstances pertaining to yourself and those relating to your offending. I accept that if an immediate term of imprisonment is imposed, it will place a substantial burden upon your family, but I must also take into account the risk that you have posed to the community over this period of time, Mr Neves, and having regard for your record and those circumstances, I am of the view that it should not be suspended.
It will not be suspended. You will be suspended to 12 months' imprisonment, but as a matter of law, I must consider whether or not you should be made eligible for parole and shall be made eligible for parole because of your potential employment and because of your age. It is 12 months and one day. Stand down, thank you.
Appeal against conviction
On 22 November 2013, the appellant filed an appeal against conviction in relation to charge FR10781/12. The appellant appeals on the ground that there was a miscarriage of justice because the facts did not establish the charge of driving with a suspended licence.
On FR 10781/12 the appellant was charged and convicted of an offence contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act. In substance, that is an offence of driving under suspension, other than a fine suspension.
It was not alleged or established that on 7 September 2012 the appellant was driving under suspension. His licence last had been suspended by an order made in March 2010. That was suspension of nine months. The period of suspension expired in December 2010. He was entitled to reapply for a licence after that, but did not do so.
A conviction based on a plea of guilty will only be set aside if the appellant establishes that a miscarriage of justice has occurred.[4]
[4] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.
One well established category of case in which a plea of guilty is set aside is where on the admitted facts the appellant could not in law have been guilty of the offence.[5]
[5] Vella v The State of Western Australia [2006] WASCA 129 [26]; Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168 [19].
That is the position here. The appellant did not drive while his licence was under suspension. He drove with a licence that had ceased.
The appellant contends that the circumstance of aggravation that he drove under suspension should be set aside and the prosecution notice should be amended as follows:
(1)the description of the offence should be 'no authority to drive - ceased';
(2)after the words 'drove a motor vehicle ... Road Traffic Act 1974' the words 'and whose authority to drive was at the time suspended' should be deleted;
(3)in that place, the following words should be added:
'who had held an Australian driver's licence of a kind required but ceased to hold the licence of that kind most recently held other than because the licence was voluntarily surrendered or had expired or was a person no longer authorised to drive because of penalty enforcement laws as described in s 49(9) of the Road Traffic Act.'
(4)the reference to the written law at the end of the prosecution notice should be changed to s 49(1)(a) and (3)(b).
The appellant accepts his guilt of the offence in its amended form.
The respondent concedes the appeal against conviction.
On 3 December 2013, I:
(a)set aside the appellant's conviction of this offence;
(b)made amendments to the prosecution notice in the form outlined above; and
(c)entered a judgment of conviction against the appellant.
The successful appeal against conviction of this offence, and conviction for the amended charge, meant the appellant must be sentenced for the amended offence.
I turn to the appeal against sentence.
Grounds of appeal against sentence
On 23 October 2013, the appellant filed an appeal against the sentences imposed for the offences of driving without a licence. The original ground of appeal alleged that the individual sentences were manifestly excessive, and the total sentence was disproportionate to the total criminality, the personal circumstances of the appellant and sentencing standards.
On 22 November 2013, the appellant filed an application for leave to add the following grounds:
(a)Ground 2: the learned sentencing magistrate erred in law and fact in failing to distinguish between driving under court suspension and driving when previously having held a licence which had ceased and not been obtained again;
(b)Ground 3: the learned sentencing magistrate erred in fact in finding that the appellant was on bail at the time of the commission of the unlicensed driving offences; and
(c)Ground 4: the learned sentencing magistrate erred in law in considering it was necessary to impose a sentence over 6 months for an individual offence when imposing imprisonment on other offences with an aggregate over 6 months.
In my view, it is necessary only to deal with grounds 2 and 3, both of which alleged express error on the part of the sentencing magistrate, which errors were conceded by the respondents.[6]
[6] Respondents' submissions [46]; ts 2 ‑ 3.
Grounds 2 and 3: previous offences of driving under suspension, and committing offences on bail
In the course of his sentencing remarks, the learned magistrate referred on a number of occasions to previous offences of driving under suspension. He indicated that the record showed previous convictions for driving under suspension in 2000 (2 counts), 2001 (2 counts), 2009 and 2010. He described the offences as the appellant's sixth conviction for driving under suspension.
The learned magistrate erred in characterising the appellant's record in this way. The appellant's record revealed previous offences of driving while under court suspension, driving under fine suspension and driving with a licence that had ceased.
Moreover, the learned magistrate characterised the offences then before him as three offences of driving under suspension. That was, with respect, an error. Before him were two offences of driving with a licence that had ceased and one of driving under suspension.
Although both of these offences have the same maximum, as the respondents concede,[7] by its nature driving under suspension is more serious. Driving under suspension has an element of disobedience, possibly wilful, of an order of the court.[8] That element is absent in the case of driving when the licence has ceased.
[7] Respondents' submissions [19].
[8] Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 [72]; Yuksel v Marchesani [2011] WASC 57 [29].
As I will explain, this error was material to the approach taken by the learned magistrate in determining the appropriate sentence.
The learned magistrate observed that what 'exacerbated the seriousness' of the appellant's offending was that he was on bail on some of the occasions on which he committed the further offences.
In that respect, the learned magistrate was in error. Bail was not imposed on any of the offences, before the third offence, on 12 February 2013.
Both these errors were material to the learned magistrate's determination of the appropriate sentence. That is apparent from the reading of the first three paragraphs of his Honour's reasons set out above. He said in terms that being on bail 'exacerbated the offences'. In essence, his Honour referred to repeated offences of driving under suspension, and the fact that offences had been committed on bail to conclude that the appellant had 'totally and utterly disregarded the law and ... treated orders made by the courts in previous instances with utter contempt'.[9]
[9] ts 10 September 2013, page 9.
This conclusion was, obviously, significantly adverse to the appellant. The conclusion was based on two foundations. Both of those foundations involved error.
For these reasons, I upheld grounds 2 and 3.
Consequently, the appellant must be resentenced on all charges.
As all the materials were before me, it was in the interests of efficiency and expedition that I do so. Both parties invited me to resentence the appellant.
In resentencing the appellant, I have regard to sentences customarily imposed for offences of this kind.
Sentences for driving without a licence or under suspension
The penalties provided for driving without a licence or under suspension are designed to be both punitive and to secure public safety on the roads.[10]
[10] Gable v Nardini [2010] WASC 321 [33].
In the case of persistent offences of driving under suspension, there is a strong need for both general deterrence and personal deterrence.[11] The same can be said of persistent offences of driving with a ceased licence.
[11] Bell v Wesley [2007] WASC 264 [42]; Logan v Kuser [2008] WASC 65 [31].
Sentencing patterns from multiple offences of driving while under suspension have been examined in a number of cases. Caution is needed in considering the pattern of sentences. They should not be considered in a blunt mathematical way. Each case is sensitive to its own particular circumstances. Nevertheless, consideration of numerous previous cases reveals a relatively stable pattern of sentences at least for driving under suspension.
Convictions of driving while under suspension involving fourth, sixth seventh or eighth such offences have commonly resulted in terms of imprisonment of between 4 and 9 months.[12]
[12] Mears v Holleman [2010] WASC 39 [24]; Gable v Nardini [34]; Yuksel v Marchesani [30] ‑ [31]; Vince v Martyn [2013] WASC 60 [15].
The pattern of sentences of imprisonment for multiple offences of driving while under suspension, including those in circumstances where there is a long history of prior convictions for the same or similar offences, shows that aggregate sentences in the region of 10 to 12 months are commonly imposed.[13]
[13] Palmer v Dwyer [2010] WASC 28 [35].
As I have said, driving under court suspension is more serious than driving with a licence that has ceased, as driving under suspension involves an element of defiance of the court's order suspending the licence. A pattern of sentences for repeated and multiple offences of driving with a licence that has ceased is less easy to discern.
The appropriate sentences
In this case, there was no alcohol and no element of dangerous or reckless driving.
There was a gap of almost two years between the end of the period of suspension of the licence in December 2010 and the commission of the first of these offences on 7 September 2012.
Nevertheless, there can be no doubt that the appellant knew that he did not have an operative licence and was not authorised to drive.
Moreover, he committed the second and third of these offences after having been charged with the first offence.
These offences reveal a disregard of the law that requires weight to be given to personal deterrence and general deterrence.
The appellant pleaded guilty, although not at the first reasonable opportunity. I have discounted the sentence by 15% on that account.
Counsel concedes, rightly in my view, that a term of imprisonment to be served immediately is the only appropriate sentence.
Taking into account the sentences imposed in the cases referred to in the parties' submissions, the circumstances of these offences and the appellant's personal circumstances, I consider that for each offence individually an appropriate sentence is one of imprisonment for 4 months.
Each of the offences was an entirely separate episode. However, taking totality considerations into account,[14] I consider that the appropriate effective term is one of 7 months. I adjust the length of the term for the second charge accordingly.
[14] See Roffey v The State of Western Australia [2007] WASCA 246 [24].
On the first charge FR 10781/12 (as amended), I impose a term of 4 months' imprisonment, commencing on 10 September 2013.
On the second charge FR 146/13, I impose a term of 3 months' imprisonment, cumulative on the first charge.
On the third charge FR 3745/13, I impose a term of 4 months' imprisonment, concurrent with the first charge.
Because the total effective term is less than 12 months, I have no power to make a parole eligibility order.[15] By s 23(2) of the Sentence Administration Act 2003 (WA), the appellant will be eligible to be released on parole when he has served one half of the term, namely 3 ½ months.
[15] Sentencing Act 1995 (WA), s 89(2).
7
13
1