Ord v The State of Western Australia
[2007] WASCA 61
•19 MARCH 2007
ORD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 61 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:63/2006 | 19 JANUARY 2007 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 18/03/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM EDWARD ORD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Driver's licence disqualification order Hardship generated by disqualification when appellant on parole after lengthy term of imprisonment Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 76 Sentencing Act 1995 (WA), s 103, s 105 |
Case References: | Gavin v The Queen (1992) 6 WAR 195 Lowndes v The Queen (1999) 195 CLR 665 McCreed v The Queen (2003) 27 WAR 554 Samuels v Western Australia (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ORD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 61 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 235 of 2002
Catchwords:
Criminal law - Appeal - Driver's licence disqualification order - Hardship generated by disqualification when appellant on parole after lengthy term of imprisonment - Turns on own facts
(Page 2)
Legislation:
Road Traffic Act 1974 (WA), s 76
Sentencing Act 1995 (WA), s 103, s 105
Result:
Extension of time to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J Mactaggart
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gavin v The Queen (1992) 6 WAR 195
Lowndes v The Queen (1999) 195 CLR 665
McCreed v The Queen (2003) 27 WAR 554
Samuels v Western Australia (2005) 30 WAR 473
(Page 3)
1 JUDGMENT OF THE COURT: On 3 December 2002 the appellant was sentenced to an aggregate term of 12 years' imprisonment, with eligibility for parole. The sentences were imposed in respect of his pleas of guilty to 11 counts charged by indictment and to an additional 18 counts charged pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). The charges brought by indictment were four counts of aggravated armed robbery, one count of armed robbery and six counts of stealing a motor vehicle. The charges brought pursuant to the s 32 notice were four charges of possession of a prohibited substance, one charge of possession of an explosive substance, four charges of stealing a motor vehicle, four charges of driving without being the holder of an appropriate driver's licence whilst having been disqualified from holding or obtaining a driver's licence and five charges of stealing. In respect of each of the four counts of aggravated armed robbery and the count of armed robbery the sentencing Judge ordered that the appellant be disqualified from holding a motor driver's licence for a period of 5 years. The disqualifications were ordered to run concurrently with each other. However, by virtue of s 103(1)(a) of the Sentencing Act, read with the definition of "disqualification order" in s 4(1) of that Act, the term of the disqualifications does not elapse while the appellant is in custody serving any sentence of imprisonment.
2 The appellant seeks leave to appeal against the sentences imposed upon him. He also seeks an extension of time for that purpose, his notice of appeal having been lodged some 3½ years out of time. The appellant's explanation for the delay is that he was wrongly advised by the lawyer representing him at the time that he was sentenced. He has deposed to the fact that the lawyer told him that he was unable to appeal against the order disqualifying him from holding a motor driver's licence, that being one of two orders which he wished to have set aside at the time of bringing his application for an extension of time and for leave to appeal.
3 The other order that he sought to set aside is referred to in ground 1 of his grounds of appeal, which is to the effect that the sentencing Judge erred in imposing an order of parole eligibility. That ground was abandoned during the hearing of the appeal. The appellant told us that he wanted to leave the State as soon as he is released from prison so that he could start a fresh life elsewhere, free of associations that he has in this State. He said that the imposition of parole, and the restrictions associated with it, would prevent him from doing so and thereby jeopardise his prospects of making a successful fresh start. However, when he learned that the result of overturning the order of parole eligibility would be that he would spend up to 2 years longer in prison than would be the case if
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- released on parole, he very sensibly abandoned that ground. We should say, in any event, that there is nothing in the materials presented to us which suggests that the sentencing Judge made any error in the exercise of his discretion in that regard.
4 The driving disqualification is challenged by ground 2 of the appellant's grounds of appeal. The particulars to that ground contend that the disqualification is excessive and punitive.
5 Perhaps with some justification, the appellant suggests that his inability to hold a driver's licence for a term of 5 years will jeopardise his prospects of obtaining employment and of successfully completing all of his parole requirements. He submits that the imposition of a disqualification from driving generates hardships on any ordinary member of the community that are compounded when the person in question is one who has been released from prison after many years of imprisonment. He suggests that the impediments resulting from his inability to drive will significantly increase the probability of failure in his attempts at rehabilitation. He also suggests that, in his case, the disqualification defeats the objective of the Sentencing Act which, he says, is to ensure that there is a balance, in the sentence imposed, between the need to reflect the offender's culpability and to operate as a general and specific deterrent, on the one hand, and the need to promote rehabilitation, on the other. He says that this failure to strike an appropriate balance is especially apparent when regard is had to the lengthy period of imprisonment that was imposed upon him in addition to the driving disqualification.
6 A sentencing judge is empowered by s 105(1) of the Sentencing Act to make a disqualification order whenever sentencing an offender for a "motor vehicle offence". That phrase is defined in s 105(5) as encompassing, amongst other things, a situation in which a motor vehicle is used in the commission of an offence or in which the commission of an offence is aided or facilitated by the use of a motor vehicle. It also encompasses an indictable offence where a motor vehicle is used to facilitate the offender's departure from the place of the commission of the offence or to avoid arrest.
7 The making of a disqualification order is, of course, discretionary. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently. The appellant must show that the primary judge failed to properly exercise his or her discretion by imposing a sentence which falls
(Page 5)
- outside the range of a sound exercise of the sentencing discretion: Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672.
8 It is apparent from his sentencing remarks that the sentencing Judge was motivated to impose the driving disqualification by the appellant's use of a motor vehicle in each of the armed robbery offences. He said in that respect that, because those offences were facilitated by the unlawful use of motor vehicles, a punishment which attached to the capacity to use a motor vehicle lawfully on the roads seemed to him to be appropriate. He specifically took into account the fact that the disqualification would have the disadvantage that the appellant would be unable to pursue what he referred to as "modes of rehabilitation … which would involve the use of a motor vehicle", but said that this was a necessary consequence of his decision to impose this additional punishment.
9 As will be apparent from what we have already said, the making of a disqualification order is empowered by s 105 of the Sentencing Act in respect of a wide range of offences. So, for example, a disqualification order can be made in the case of an attempt to leave the scene of a crime by car, no matter what the crime might have been. It must obviously have been contemplated by the legislature that a disqualification order might be imposed in circumstances in which it would take effect after a lengthy term of incarceration. Moreover, in this case the disqualification was imposed in respect of no less than five offences that had involved the unlawful use of a motor vehicle and in circumstances in which there were four other convictions in respect of the theft of a motor vehicle and another four convictions in respect of driving whilst disqualified from holding or obtaining a driver's licence of any kind. In these circumstances there is no basis for suggesting that the sentencing Judge made any error in the exercise of his discretion, merely because of the hardship that will result from the imposition of the disqualification, a factor which, as we have said, was expressly taken into account.
10 We should add, in any event, that it is common cause that it is open to the appellant, once he has been released on parole, to apply to the Supreme Court for an order directing the Director General (as defined by s 5(1) of the Road Traffic Act 1974 (WA)) to issue an extraordinary licence to him: s 76(1) and s 76(2)(a) of the Road Traffic Act. If the appellant is then able to make out a strong case for the grant of such a licence (perhaps because he cannot otherwise obtain employment or meet parole conditions), and if the application is supported by his parole officer, there is a reasonable prospect that it will be granted, although there can, of course, be no guarantee of that.
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11 In our opinion the appeal has consequently no reasonable prospect of succeeding: Samuels v Western Australia (2005) 30 WAR 473. In that circumstance, and having regard for the length of the delay, we would refuse the application for an extension of time within which to appeal: see, in that respect, Gavin v The Queen (1992) 6 WAR 195 at 198 - 199; McCreed v The Queen (2003) 27 WAR 554 at 562.
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