Palmer v Dwyer

[2010] WASC 28

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PALMER -v- DWYER [2010] WASC 28

CORAM:   EM HEENAN J

HEARD:   19 JANUARY 2010

DELIVERED          :   19 JANUARY 2010

PUBLISHED           :  18 FEBRUARY 2010

FILE NO/S:   SJA 1099 of 2009

BETWEEN:   PAUL DAVID PALMER

Appellant

AND

MATHEW JOHN DWYER
First Respondent

MARK ANTHONY POLIZZI
Second Respondent

ANTHONY CHARLES KIRKMAN
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L H JONES

File No  :AR 2841 of 2008, AR 2842 of 2008, AR 2843 of 2008, PE 17597 of 2009, PE 37093 of 2009, PE 37094 of 2009

Catchwords:

Criminal law - Sentence - Appeal - Driving whilst under suspension - Repeat offences - Breach of suspended imprisonment order - Sentences of imprisonment - Totality - Cumulation or concurrence - Variation of orders

Legislation:

Nil

Result:

Appeal allowed
The sentences for the separate offences shall all stand but the orders for cumulation and concurrency be varied so as to provide for a total effective period of imprisonment of 13 months and with orders for eligibility for parole for each sentence

Category:    B

Representation:

Counsel:

Appellant:     Ms K A Gorski

First Respondent           :     Ms F B Seaward

Second Respondent       :     Ms F B Seaward

Third Respondent         :     Ms F B Seaward

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

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

Anderson v Heath [2005] WASC 253

Anderson v Stillwell [2006] WASC 257

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Chan v The Queen (1989) 38 A Crim R 337

Fernandes v The State of Western Australia [2009] WASCA 227

Gould v Whalley [2007] WASC 315

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Kearney v Rinaudo [2007] WASC 104

'LJM' (A Child) v The State of Western Australia [2005] WASCA 172

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Moody v French [2008] WASCA 67

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Faithfull [2004] WASCA 39

Rossiter v Francisty [2005] WASC 270

Sheiner v Roberts [2009] WASC 281

1. EM HEENAN J:  This is an appeal by leave from sentences imposed by his Honour Magistrate Jones in the Armadale Magistrates Court on 4 August 2009.  On that occasion his Honour was required to sentence the present appellant for seven separate offences.  The first three were the subject of previous pleas of guilty resulting in suspended sentences of imprisonment on 11 March 2008.  The first of those three offences was breach of a suspended imprisonment order by driving without authority while being under suspension, resulting in a head sentence of 7 months' imprisonment with parole eligibility.  The original offence was committed on 4 March 2008.  The second offence was a breach of a suspended imprisonment order for breach of bail, the original offence being committed on 23 October 2002.  That resulted in a suspended term of imprisonment of 1 month to be served concurrently with the first sentence, but again with parole eligibility.  The third offence was a breach of a suspended imprisonment order for reckless driving committed on 4 March 2008.  That resulted in a suspended term of imprisonment of 4 months, concurrent with the previous two offences but, again, with parole eligibility. 

2. The effective total sentence under those three original offences was a term of 7 months' imprisonment with parole eligibility and associated licence disqualifications.

3. On 2 October 2008 and on 12 June 2009 the appellant committed four further offences, which resulted in charges against him.  The commission of those offences resulted in a breach of each of the terms of suspended imprisonment imposed for the first three offences and, as a consequence, the appellant was brought before the Magistrates Court at Armadale on 4 August 2009 to be sentenced for the breached terms of the suspended sentences.

4. His Honour had received pleas on those matters on 7 July 2009, had ordered a pre‑sentence report, and ultimately sentenced the appellant for those breaches and for the subsequent four offences on 4 August 2009, as I have said.  I have been provided with a copy of the pre‑sentence report, and it is generally positive, but it does refer to a very lengthy record of offending including numerous prior convictions for driving whilst under suspension and four other road offences including previous offences for reckless driving.

5. When considering the submissions dealing with the disposition of the breach of the suspended sentences previously imposed, the learned magistrate gave attention to the pre‑sentence report and to the factors personal to the appellant.  His Honour pointed out that under the legislation, as it applied to the circumstances which had arisen, the court was required to impose the terms of imprisonment which had been suspended unless there was sufficient reason to the contrary and, after examining the circumstances, decided that there was not sufficient reason to the contrary and so imposed immediate terms of imprisonment for the periods which had originally been suspended, namely, 7 months with parole eligibility, concurrent with 1 month with parole eligibility and concurrent with 4 months, again with parole eligibility ‑ a total effective sentence of 7 months' imprisonment with parole eligibility.

6. There have been submissions today, and in the written submissions, that it would have been open to his Honour to have imposed something less than the full terms of the original sentence or sentences imposed, having regard to the circumstances, but that seems to me to be a matter entirely within the discretion of the learned magistrate.  Having regard to this appellant's history and to the numerous breaches of the suspended terms of imprisonment which had occurred, there does not seem to me to be any demonstrable error in the imposition of the full extent of the terms of imprisonment which had been imposed but suspended.

7. Accordingly, I consider that the effective term, the 7 months' immediate imprisonment for those three convictions which had been the subject of the suspended imprisonment orders, is not in any way shown to be erroneous and that it should be accepted as a proper sentencing disposition for those offences.

8. I come now to the additional four offences which were committed by the appellant after the original sentences of imprisonment in March 2008.  They were:  speeding on 2 October 2008; secondly, driving whilst under suspension, again on 2 October 2008; thirdly, driving whilst under suspension on 12 June 2009; and, fourthly, reckless driving, again on 12 June 2009.  For those four offences, the learned magistrate, when sentencing the appellant on 4 August 2009, imposed a $150 fine for the speeding offence, for the driving whilst under suspension on 2 October 2008, a sentence of 5 months' immediate imprisonment, cumulative upon the earlier 7 months but with parole eligibility, and 9 months' disqualification from obtaining a motor driver's licence, cumulative on earlier disqualifications.  In relation to the third of those four offences; that is, driving whilst under suspension on 12 June 2009, his Honour imposed an immediate term of imprisonment of 6 months, cumulative on the first effective sentence of 7 months and the second sentence of 5 months, but with parole eligibility, and a 9 month period of disqualification from obtaining a motor driver's licence, cumulative on previous terms of disqualification.

9. On the fourth offence; that is, the reckless driving offence, his Honour imposed an immediate term of imprisonment of 6 months, cumulative upon all the other sentences but again with parole eligibility, and also his Honour imposed a life disqualification against holding a motor driver's licence. 

10. The effect of these orders was that the appellant became liable to serve a total of 24 months' immediate imprisonment on 4 August 2009, but with parole eligibility, and the periods of disqualification mentioned.

11. From those orders the appellant appeals to this court by leave granted by her Honour Jenkins J on 30 November 2009.  The grounds of appeal, as amended and re‑amended by leave, are that:

    (1)the learned magistrate erred in law in imposing sentences that, individually and in aggregate, were manifestly excessive taking into account the circumstances of the offending, the appellant's personal circumstances, the pleas of guilty and sentencing standards for offending of this type; and

    (2)the learned magistrate erred in law by failing to adequately take into account the totality principle by accumulating the sentences to such an extent that the total sentence imposed was manifestly excessive.

12. The learned magistrate was naturally and, if I may say so, correctly, concerned about the threat which the appellant posed to himself and to the public by the dangerous nature of the driving in the circumstances concerned and his history of driving whilst under suspension.  In passing sentence his Honour observed, and I quote:

    It indicates to me that you are a person who is really a danger to yourself, but more particularly a danger to people on the road, therefore I am not satisfied that there has been anything shown to me that would make it unjust to impose those suspended terms that I imposed, therefore I intend to breach those suspended imprisonment orders that I made in March of 2008.

13. Then again on page 9 his Honour said:

    I have also taken into consideration the need for general and specific deterrence and I have also taken into consideration, as I say, the totality principle.  I have taken into consideration your early plea of guilty, so you have accepted responsibility for everything.  However, you were one of the most dangerous riders or drivers that has come before me in a long time.

14. The appellant's record shows that the sentences imposed for driving whilst under suspension on 2 October 2008, and again on 12 June 2009, were sentences imposed respectively for the tenth and eleventh offences by this appellant whilst driving under suspension.  So his record is really quite shocking in that regard. 

15. In relation to the sentence for reckless driving, there are previous offences for reckless driving, and I think it is agreed by counsel that this particular offence was his fourth conviction for reckless driving.  That being the case, it seems to me that the individual sentences of terms of imprisonment and the periods selected by the learned magistrate were well deserved and that no error has been shown in the imposition of the individual sentences for any of those four offences, and consequently the first ground of appeal fails. 

16. That brings me to the question of cumulation and totality.  The written outlines of submissions which have been provided by the parties refer comprehensively to the principles which apply in this regard and I adopt the submissions which have been put before me in this regard, by saying that an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion in a different manner.  For an appeal to succeed it must be shown that the sentencing court acted upon a wrong principle, took into account extraneous or irrelevant matters, made a mistake of fact or failed to take into account some material consideration; the authorities including House v The Queen [1936] HCA 40; (1936) 55 CLR 499 and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

17. Further, an appellate court must fully recognise the discretionary character of the sentencing function and must accord to the sentencing officer a wide measure of latitude, as explained by Kirby J in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336. When determining whether a sentence is excessive the appellate court must view it in the context of the maximum sentence provided for the crime, the standards of sentencing customarily observed with respect to the crime, the place at which the criminal conduct occurred and the situation it occupies in the scale of the seriousness of crimes of that type and the personal circumstances of the offender. All this was explained by Malcolm CJ in Chan v The Queen (1989) 38 A Crim R 337, 482.

18. This particular case, however, involves the consideration of sentencing when there are multiple offences and how the sentences should be combined or accumulated.  In that regard, McLure P in Fernandes v The State of Western Australia [2009] WASCA 227 [12] observed:

    In the ordinary course of sentencing for multiple offences the court will first determine the appropriate sentence for each offence; secondly, assess whether the sentences should be made concurrent or cumulative by reference to established principles; thirdly, review the aggregate sentence by reference to principles of totality.

19. That, with respect, is the approach which I consider I should and must adopt in the present case.  I have undertaken the first phase of that task.  I have already concluded that the individual sentences for each offence as imposed by the learned magistrate were appropriate.  One passes then to the question of cumulative and concurrent sentences.  There is reference to the one transaction rule which essentially provides:

    Concurrent sentences should be imposed in respect of a number of offences which 'arise from substantially the same act or same circumstances or a closely related series of occurrences'. 

20. That quotation is taken from 'LJM' (A Child) v The State of Western Australia [2005] WASCA 172 [8] in the judgment of Steytler P, but it is necessary to recognise that this is not so much a rule as a guideline, which depends upon the circumstances of each case and that there is no obligation to impose concurrent terms for multiple offences constituting one transaction or a continuing episode. Again see the judgment of Steytler P in 'LJM' at [9] and in the judgment of McLure J in R v Faithfull [2004] WASCA 39.

21. However, in this present case, the offending which occurred on 12 June 2009, namely, the driving whilst under suspension and the reckless driving, was essentially the same offence and that, other matters be being equal, one would have expected those sentences to be served concurrently.  The question is whether other factors are equal.

22. Counsel for the appellant has drawn attention to the totality principle which applies when an offender is to be sentenced for more than one offence.  Where he is serving a term of imprisonment at the time of sentencing for another offence and it has two aspects:  firstly, the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences having regard to all relevant circumstances; and secondly, the  total effective sentence imposed on the offender should not constitute a crushing sentence, see Postiglione and Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1.

23. The submission is that, in this present case, the process of cumulation leading to each of the three sentences of imprisonment for the new offences and the concurrent sentence for the suspended sentence being ordered to be served cumulatively, making a total period of 24 months' imprisonment, resulted in an excessively long sentence, having regard to the principle of totality and the appellant's circumstances.

24. The personal circumstances of the appellant are that he was born on 14 July 1971 and is, therefore, presently aged 38 years, he is single and he is predominantly occupied in caring for aged parents.  He lives with his parents or at least before he was imprisoned he lived with his parents.  His father is 87 years of age and in need of attention because of chronic diabetes, and his mother is 67 years of age, and is suffering from cancer.  He has had quite an extensive record of offending, not only for driving offences but for more serious criminal offences, including stealing, breaking and entering and burglary, and has been sentenced to previous terms of imprisonment for a number of those offences.  In the main, that criminal conduct occurred more than 10 years ago and it seems that in more recent years Mr Palmer has avoided more serious breaches of the law, although his driving record has continued to be unimpressive.  As a result of the sentences which have been passed, he is now disqualified from driving for life and the information indicates that he has sold or disposed of the motor vehicle which he was using at the time of these more recent offences. 

25. My attention has been drawn to a series of decisions of judges of this court and of the Court of Appeal dealing with sentencing for multiple offences of driving whilst under suspension, other driving offences and some occasions associated with offences of reckless driving.  In order to support the submission advanced by counsel for the appellant that the cumulation effected in this case results in an excessive period of imprisonment, I have been referred to the decision of Sheiner v Roberts [2009] WASC 281, by McKechnie J, in which his Honour collects a large number of decisions dealing with sentencing for driving whilst under suspension. This shows that the pattern of sentencing for those offences, even when there has been a history of driving under suspension, indicates periods of imprisonment from 8 months to 12 months, depending on the circumstances, although there have been a number of sentences for longer periods including 16 months and 27 months.

26. In Sheiner v Roberts his Honour quashed the sentence and restructured a sentence for numerous convictions so that a total sentence of 8 months was imposed in substitution for an effective sentence of 18 months' imprisonment in each case with parole eligibility.  In the case of Rossiter v Francisty [2005] WASC 270 McKechnie J, was again dealing with a case of multiple offences for driving whilst under suspension and varied the sentences imposed so as to provide for an effective sentence of eight months. His Honour said at [8]:

    By reference to the schedule and the range of sentences customarily imposed, it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant and it is especially rare for a sentence to be imposed without parole eligibility.  I am confident that had one magistrate dealt with all of the offences together then the sentence imposed would have been somewhere in the region of 8 months which, having regard to the adjustments necessary to be made under the Sentencing Act 1995 (WA), would have previously equated to a sentence of 12 months. Such a sentence would have encompassed the criminality of all of the appellant's offending.

27. His Honour's reasons include an extensive table setting out the standards of sentence commonly imposed in like circumstances. 

28. In Anderson v Heath [2005] WASC 253 Le Miere J dealt with an appeal involving multiple offences and numerous sentences. They included a number of offences of driving whilst under suspension but his Honour observed that he should have regard to the totality of the sentences to be imposed and as a result ordered that those sentences ought be served concurrently. His Honour undertook an extensive review of the authorities and principles which applied and I respectfully adopt his Honour's analysis of those cases.

29. Counsel for the respondent referred particularly to two other cases indicating that sentences of imprisonment for multiple offences of driving whilst under suspension could, on occasion, exceed 12 months.  Referring to these cases as indicating higher sentences, the first is the decision of McKechnie J in Gould v Whalley [2007] WASC 315 where a total of 12 months' imprisonment was imposed for five offences; driving whilst disqualified, reckless driving, a second offence of driving whilst disqualified, driving under the inference of alcohol and obstructing a police officer. The result was that for the second offence of driving while disqualified a sentence of 12 months' cumulative imprisonment was reduced to 8 months and 2 weeks and a sentence for 9 months for driving under the influence of alcohol was reduced from 9 months to 8 months. The result was that a total effective sentence of 20 months and 2 weeks' imprisonment was imposed.

1. The second case involving sentences of longer periods is the decision of Anderson v Stillwell [2006] WASC 257, by Blaxell J, where sentences of imprisonment had been imposed for the twelfth, thirteenth and fourteenth convictions for driving whilst under suspension and when each of these offences was committed whilst on bail. Sentences totalling 2 years' immediate imprisonment had been imposed by the learned Magistrate and the question was whether or not these were excessive. His Honour allowed the appeal in part and imposed, after adjusting one of the sentences, a total period of 20 months' imprisonment. That appears to be the longest period which has been imposed for sentences of this kind involving multiple prior convictions for driving whilst under suspension.

2. This brings me to two decisions of the Court of Appeal which, for obvious reasons, I consider merit special attention, and their principles are of course binding upon me.  The first is McDonald v White [2007] WASCA 213, a joint decision of a court comprising Steytler P, McLure JA and myself sitting as an acting judge of appeal. In that case, in the joint judgment of the court at [31], is the following passage:

   The cases (including those to which we have referred) reflect some inconsistency in the length of the terms of imprisonment imposed for offences of this kind.

3. For example, in Mason v Morrison [2004] WASCA 181, the appellant was sentenced, after a successful appeal by the prosecutor, to concurrent terms of 9 months' imprisonment on each of two charges, one of driving under suspension and the other of driving under the influence of alcohol with a blood alcohol content of 0.245%. The appellant, who had pleaded guilty, had 11 prior convictions for driving under suspension and nine for driving under the influence. On the other hand, in Anderson v Silwell, the decision of Blaxell J which I have just described, sentences of 8 months' imprisonment to be served cumulatively were imposed in respect of two counts of driving under suspension.  A further term of 4 months' imprisonment also to be served cumulatively was imposed on a third count of driving under suspension in circumstances for which there were very powerful mitigatory features.  The appellant in that case had 11 prior convictions for driving under suspension. 

4. In Kearney v Rinaudo [2007] WASC 104 the appellant was sentenced to cumulative terms of 8 months' imprisonment on two counts of driving under suspension. He had an extensive traffic record including six prior convictions for driving whilst suspended. In McDonald v White the court proceeded to examine a number of other cases and in the end concluded that in the circumstances of that particular case, an appropriate aggregate sentence was 10 months' imprisonment, and that was achieved by directing that certain of the offences should be served cumulatively but some concurrently.  So, in effect, a term of 10 months was imposed; markedly less than the examples of longer periods which I have just mentioned. 

5. I come finally to the more recent decision of the Court of Appeal in Moody v French [2008] WASCA 67, a decision of the court comprising five judges, Steytler P and Wheeler, McLure, Buss and Miller JJA, in which there was a unanimous decision to allow the appeal, setting aside a sentence of 21 months' total imprisonment without eligibility for parole, and in lieu imposing a sentence of 12 months' total imprisonment with eligibility for parole, where there were four driving offences including blood alcohol offences all committed whilst the appellant was subject to a suspended sentence of imprisonment. Again their Honours undertook a detailed examination of the principles applicable, which I respectively adopt and follow, and at [65] said:

   In our respectful opinion these cases, when considered with the fact that the longest term of immediate imprisonment previously required to be served by the appellant was one of only 4 months, reveal that the total sentence imposed in the present case was so severe as to breach the totality principle.  One of the limbs of that principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Woods v R (1994) 14 WAR 381. The sentence imposed seems to us to have been plainly disproportionate to the appellant's overall criminality, when looked at in all of the circumstances to which we have referred.

6. This review of the authorities, and particularly the decisions of the Court of Appeal, reveals that, generally speaking, the pattern of sentences of imprisonment for multiple offences of driving whilst under suspension, including those in circumstances where there is a long history of prior convictions for the same or similar offences, shows that sentences aggregating, in effect, somewhere near the region of 10 to 12 months' imprisonment are commonly imposed and seldom exceeded, although there are clearly occasions when longer periods can be imposed.  There is no example of a period of 24 months' imprisonment being imposed.

7. I consider that the appropriate outcome of this appeal should be that the sentences in relation to the breach of the suspended terms of imprisonment should all stand with the effect that there is an aggregate effective sentence of 7 months' imprisonment with eligibility for parole in each of the three sentences.

8. When it comes to the three periods of imprisonment for the offences committed on 2 October 2008 and the two offences of 12 June 2009, I consider that there should be changes.  The 5‑month sentence for driving whilst under suspension on 2 October 2008 should be ordered to be served concurrently with the earlier sentences totalling 7 months but, again, with parole eligibility.

9. In relation to the driving whilst under suspension on 12 June 2009, I consider that the sentence of 6 months' imprisonment to be served cumulatively with parole eligibility should stand.  The effect of that is that it will be accumulated on 7 months' imprisonment rather than 12, bringing the total cumulative period to 13 months, again, with eligibility for parole.

10. In relation to the reckless driving conviction, for the offence committed on 12 June 2009 for which 6 months' imprisonment was imposed, I consider that the sentence should stand, but that it should be concurrent with the other sentences rather than cumulative.  The effect of all this is that the previous total effective term of 24 months' imprisonment will be reduced to a total of 13 months' imprisonment with eligibility for parole in each of the cases, and orders will be made to that effect.

11. The orders will be:

    1.The appeal be allowed.

    2.The sentences imposed on the appellant on 4 August 2009 for the following offences be confirmed but the orders for certain of these sentences to be served cumulatively be varied as follows:

    (a)7 months' imprisonment with parole eligibility on charge AR 2841/08 for breach of suspended imprisonment order for no authority to drive being under suspension (original offence dated 4 March 2008) be confirmed;

    (b)1 month's imprisonment with parole eligibility on charge AR 2843/08 for beach of suspended imprisonment order for breach of bail (original offence dated 23 October 2002) to be served concurrently with the sentence in par (a) above be confirmed;

    (c)4 months' imprisonment with parole eligibility on charge AR 2844/08 for breach of suspended imprisonment order for reckless driving (original offence dated 4 March 2008) to be served concurrently with the sentence in pars (a) and (b) above be confirmed;

    (d)5 months' imprisonment with parole eligibility on charge PE 17597/09 for no authority to drive being under suspension (offence dated 2 October 2008) to be served cumulatively upon the sentences in pars (a), (b) and (c) above be varied so as to provide that this sentence shall be served concurrently with the sentences in pars (a), (b) and (c) above;

    (e)6 months' imprisonment with parole eligibility on charge PE 37093/09 for no authority to drive being under suspension (offence dated 12 June 2009) to be served cumulatively upon the sentences originally imposed in pars (a), (b), (c) and (d) above be varied so as to provide that this sentence shall be served cumulatively upon the sentences in pars (a), (b) and (c) above, resulting in an aggregate total sentence of 13 months' imprisonment with parole eligibility;

    (f)6 months' imprisonment with parole eligibility on charge PE 37094/09 for reckless driving (offence dated 12 June 2009) to be served cumulatively upon the sentences originally imposed in pars (a), (b), (c), (d) and (e) be varied so as to provide that this sentence shall be served concurrently with the sentence imposed in par (e) as varied again, resulting in an aggregate total sentence of 13 months' imprisonment with parole eligibility;

    (g)there be no variation of any of the orders for licence disqualification imposed as part of the original sentences (d), (e) and (f) above; and

    (h)the effect of these variations is that the appellant be sentenced to four terms of imprisonment under (a), (b), (c) and (d) totalling 7 months cumulative and 5 months concurrent and to two further terms of imprisonment under (e) and (f) each of 6 months be served concurrently but cumulative upon the sentence of 7 months imposed for (a), making an effective aggregate period of imprisonment of 13 months but with orders for parole eligibility applying to each of the six sentences.