NICHOLAIDIS v Jolly

[2009] WASC 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   NICHOLAIDIS -v- JOLLY [2009] WASC 93

CORAM:   McKECHNIE J

HEARD:   17 MARCH 2009

DELIVERED          :   17 MARCH 2009

FILE NO/S:   SJA 1001 of 2009

BETWEEN:   TANIA NICOLE NICHOLAIDIS

Appellant

AND

CAMERON JOLLY
First Respondent

JUSTIN BUDDEN
Second Respondent

CAMERON CHRISTIE
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B A LANE

File No  :PE 48151 of 2008, PE 48153 of 2008, PE 48156 of 2008, PE 48161 of 2008, PE 48163 of 2008, PE 52540 of 2008, PE 21116 of 2008

Catchwords:

Criminal law - Sentencing - Totality - Whether sentences totalling 6 years exceeds requirements of justice - Necessity to take 'last look' - Road traffic - Driving under fines suspension - Whether disqualification period excessive

Legislation:

Nil

Result:

Appeal allowed
Sentence and period of disqualification varied

Category:    D

Representation:

Counsel:

Appellant:     Ms K J Farley

First Respondent           :     Ms K C Cook

Second Respondent      :     Ms K C Cook

Third Respondent          :     Ms K C Cook

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):

Nil

1. McKECHNIE J:  The appellant has long been a persistent and deceptive criminal and, as has been pointed out by counsel, prior to these offences she had a very long record of stealing, burglaries, fraud and the like.  On 9 December 2008 she came to be sentenced in two courts.  She was first of all sentenced in the District Court for a series of offences which attracted a term of 3½ years' imprisonment.

2. She was then taken to the Magistrates Court where she appeared before a magistrate to be sentenced for 139 offences, including a series of burglary offences and various other matters.  The mere statement of the fact that there were so many offences shows that this was persistent and sustained criminal behaviour with which the magistrate had to deal.

3. In essence, the magistrate imposed a series of concurrent terms but in particular in relation to each of the five charges of burglary imposed a term of 5 months' imprisonment made cumulatively on each to make a total of 30 months' imprisonment, which in turn was made cumulative on the 3 1/2 years imposed an hour or two before in the District Court.

4. She faced a total term of 6 years' imprisonment with parole and she was also given a sentence of 3 months and a motor vehicle driver's licence disqualification for 9 months for a second offence of driving while under disqualification.

5. From those series of sentences the appellant appeals on two grounds, one relating to the terms of imprisonment and one relating to the disqualification.  As to the term of imprisonment the ground is that the learned magistrate erred in law by failing to properly consider the totality principle when making the sentences imposed for the six burglary charges cumulative upon each other and cumulative upon the District Court sentence.

6. There was no doubt that the magistrate knew of the District Court sentence and made a deliberate decision to accumulate the sentences.  It is not as if the magistrate overlooked or failed to have regard to anything.  The question is whether a term of 6 years' imprisonment in total for all the criminality disclosed both in the District Court and the Magistrates Court is manifestly excessive.

7. The High Court has said manifest excessiveness or inadequacy is a conclusion.  It is to be reached in the end in part impressionistically bearing in mind that the discretion is that of the sentencing tribunal and it is only if there is an error that this court can interfere.

8. There is not much to be said in favour of the appellant but she did plead guilty and for which she was entitled to and did receive some mitigation.  The magistrate made an error in the maximum sentence available but Ms Farley for the appellant plainly and appropriately concedes that no complaint could fairly be made for 5 months' imprisonment for each of the burglaries, nor that the sentence of 30 months by itself accumulated would be in excess of a sound sentencing discretion.

9. Her submission, which I accept, is that when the sentence of 30 months added to the 3 1/2 years the overall total sentence is one which exceeds the proper range of punishment for these offences.  I say that notwithstanding that there are 139 offences and that this is a long and persistent course of criminal conduct.

10. I have reached a firm view that in this case the sentencing discretion did miscarry inasmuch that the magistrate should have had one last look at the total overall sentence.

11. I will vary the sentences imposed by the magistrate in respect of the last two burglary offences (PE 48161/08 and PE 48163/08) of 5 months' imprisonment on each charge cumulative, to be served concurrently with the terms imposed in respect of the other four burglary offences.  This will reduce the sentence imposed in the Magistrates Court from 30 months' imprisonment to 20 months imprisonment ('to be served cumulative on existing sentence' - that imposed in the District Court).

12. I turn to the second ground which is that the learned magistrate erred in law by imposing a disqualification period of 9 months in relation to the charge of driving under fines suspension (PE 21116/08).  Again the complaint here is that the penalty was manifestly excessive in all the circumstances.

13. This was the second offence of driving while under fines suspension and it thereby attracted the discretion of the magistrate to impose a term of disqualification.  In my view it was entirely appropriate for the magistrate to have imposed a term of disqualification.

14. The maximum disqualification period which may be imposed is 3 years, and on one view disqualification of 9 months is well within that range.  On the other hand, it must be taken into account that it was a disqualification for fines suspension, albeit the second such disqualification.  In my view the term of 9 months is itself in excess of the proper principles of sentencing.

15. While I do not consider the magistrate erred in making an order for disqualification, I consider that 9 months in the circumstances exceeded a proper exercise of discretion.  I would reduce the term of disqualification by 5 months to a term of 4 months.

16. The orders will be:

    The appeal is allowed.  The sentence imposed by the magistrate is varied by ordering that sentences imposed for the final two charges of burglary of 5 months on each be served concurrently with all other sentences.  The order for disqualification be varied by reducing the term of disqualification from 9 months to a period of 4 months.