Payne v Ault
[2013] WASC 65
PAYNE -v- AULT [2013] WASC 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 65 | |
| Case No: | SJA:1144/2012 | 14 FEBRUARY 2013 | |
| Coram: | HALL J | 5/03/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | SJA 1148 of 2012: 1. Leave to appeal granted 2. Appeal against conviction allowed to the extent of deleting reference to the circumstance of aggravation SJA 1144 of 2012: 1. Leave to appeal granted 2. Appeal against sentence allowed 3. The sentences imposed by the magistrate be set aside and in lieu thereof the appellant be sentenced as follows: (a) charge 8627/12 - 12 months' imprisonment suspended for 12 months; disqualification for 18 months; (b) charge 8628/12 - 8 months' imprisonment suspended for 12 months; disqualification for 9 months cumulative; (c) charges 8629/12 and 8630/12 - penalties imposed by the magistrate (except to remove reference to the disqualification on charge 8630/12 being concurrent) (the total period of disqualification being 36 months) | ||
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| Parties: | JEMMA MARIE PAYNE TREVOR JOHN AULT |
Catchwords: | Criminal law Appeal against conviction and sentence for dangerous driving causing bodily harm Whether offence committed in circumstances of aggravation Whether charge materially defective Whether erroneous allegation of circumstances of aggravation had impact on sentence |
Legislation: | Road Traffic Act 1974 (WA), s 59A, s 59B |
Case References: | Borsa v The Queen [2003] WASCA 254 Caporn v The State of Western Australia [No 2] [2008] WASCA 26 Forkin v The State of Western Australia [2013] WASCA 51 Hogue v The State of Western Australia [2005] WASCA 102 Mathews v Whalley [2010] WASC 165 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- SJA 1148 of 2012
- Appellant
AND
TREVOR JOHN AULT
Respondent
ON APPEAL FROM:
For File No : SJA 1144 of 2012
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B C GLUESTEIN
File No : JO 8627 of 2012, JO 8628 of 2012, JO 8630 of 2012
For File No : SJA 1148 of 2012
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B C GLUESTEIN
File No : JO 8627 of 2012
(Page 2)
Catchwords:
Criminal law - Appeal against conviction and sentence for dangerous driving causing bodily harm - Whether offence committed in circumstances of aggravation - Whether charge materially defective - Whether erroneous allegation of circumstances of aggravation had impact on sentence
Legislation:
Road Traffic Act 1974 (WA), s 59A, s 59B
Result:
SJA 1148 of 2012:
1. Leave to appeal granted
2. Appeal against conviction allowed to the extent of deleting reference to the circumstance of aggravation
SJA 1144 of 2012:
1. Leave to appeal granted
2. Appeal against sentence allowed
3. The sentences imposed by the magistrate be set aside and in lieu thereof the appellant be sentenced as follows:
(a) charge 8627/12 - 12 months' imprisonment suspended for 12 months; disqualification for 18 months;
(b) charge 8628/12 - 8 months' imprisonment suspended for 12 months; disqualification for 9 months cumulative;
(c) charges 8629/12 and 8630/12 - penalties imposed by the magistrate (except to remove reference to the disqualification on charge 8630/12 being concurrent) (the total period of disqualification being 36 months)
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Ms K A Gorski
Respondent : Mr L M Fox
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Caporn v The State of Western Australia [No 2] [2008] WASCA 26
Forkin v The State of Western Australia [2013] WASCA 51
Hogue v The State of Western Australia [2005] WASCA 102
Mathews v Whalley [2010] WASC 165
(Page 4)
- HALL J:
Introduction
1 On 17 September 2012 the appellant pleaded guilty to charges of dangerous driving occasioning bodily harm contrary to s 59A(1) of the Road Traffic Act 1974 (WA) (RTA), failing to stop when a person is injured contrary to s 54(3) of the RTA, failing to stop where property is damaged contrary to s 55(4) of the RTA and driving without authority contrary to s 49(1)(a) and s 49(3)(d) of the RTA.
2 On 22 October 2012 the appellant was sentenced as follows:
Charge Number | Offences | Penalties | Licence Disqualification |
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3 The appellant has appealed against her conviction on the dangerous driving occasioning bodily harm charge and against the sentences of imprisonment imposed on the first two charges and the total licence disqualification. The appeal notices were filed approximately two weeks out of time. The delay was short and an explanation for it has been provided. An extension of time will be granted.
4 The ground of appeal against conviction is that the appellant's conviction on the dangerous driving causing bodily harm offence was a miscarriage of justice. The appellant's contention is that she was convicted of a charge that alleged a circumstance of aggravation but that
(Page 5)
- the facts as admitted contained no reference to any matters that could constitute a circumstance of aggravation within the meaning of s 59B(3) of the RTA. It is submitted that she should not have been convicted of an offence containing an allegation that it was committed in circumstances of aggravation and she should not have been exposed to the higher penalty applicable to such an offence.
5 It is further submitted that the sentence imposed for this offence was higher than the statutory maximum available where no circumstances of aggravation exists. For that reason it is said that the sentence imposed was wrong in law. It is also said that the sentences imposed for the first two offences were manifestly excessive and that the total licence disqualification was disproportionate to the total criminal offending.
6 For the reasons that follow I have concluded that there was a material error in the wording of the charge. Whilst this did not in fact expose the appellant to a greater maximum penalty, it was a matter that had the real potential to have an impact on sentencing. For those reasons the appeal against conviction must be allowed to the extent of removing the reference to circumstances of aggravation. The appeal against sentence must also be allowed and the appellant resentenced. That will necessitate taking into account further information regarding the appellant's personal circumstances and, in particular, changes in those circumstances since the time of her conviction.
Facts
7 At about 5.53 pm on Wednesday, 4 April 2012 the appellant was driving a Nissan sedan in an easterly direction along Dundebar Road, Wanneroo. She was not at this time the holder of a current valid drivers licence. Her drivers licence was subject to a demerit point suspension which commenced on 1 February 2012 and continued to 1 May 2012. Also in the car were her partner and two children.
8 The appellant approached a sweeping left hand curve in the road at a speed which was in excess of the 60 km per hour speed limit. She was unable to safely negotiate the curve and her vehicle drifted to the incorrect side of the road. A driver travelling in the opposite direction observed the appellant's vehicle veering towards him and took evasive action. The appellant's vehicle then continued to slide and started to fishtail through the bend towards a second vehicle. The driver of the second vehicle also took evasive action, attempting to drive off the road and into a nearby driveway to avoid a collision. By this time the appellant had lost control of her vehicle which collided with the second vehicle trapping the driver.
(Page 6)
- The impact caused injuries to the driver of the second vehicle including removing a section of flesh from his hip and buttock area. He also suffered extensive bruising.
9 Immediately following the accident the appellant drove off in an easterly direction leaving skid marks on the road. She travelled only a short distance before her vehicle broke down due to damage caused in the accident. Police attended a short time later. The appellant was observed to be very unsteady on her feet and was displaying signs of intoxication. Breath tests showed a negative result for alcohol and the appellant was then taken to the Joondalup Health Campus where a blood sample was obtained. The blood test showed that the appellant had detectable quantities of Alprazolam, Buprenorphine, Desmethydiazapam and Diazapam.
10 On 28 July 2012 the appellant was charged with the offences referred to earlier. The charge of dangerous driving is described in the prosecution notice as being a charge of 'dangerous driving occasioning bodily harm in circumstance of aggravation'. The charge itself reads that on 4 April 2012 the appellant:
Drove a motor vehicle on a road, in circumstances of aggravation within the meaning of section 59B(3) of the Road Traffic Act 1974, while under the influence of drugs, to such an extent as to be incapable of having proper control of the vehicle, and was involved in an incident occasioning bodily harm to [the victim].
Proceedings in the Magistrates Court
11 The appellant appeared in the Joondalup Magistrates Court on 27 August 2012. At that stage, and on the basis that pleas of guilty were likely, duty counsel sought an adjournment so that the appellant could be assessed for suitability for a drug programme. The magistrate obtained some brief details as to the nature of the offence and the appellant's prior record, which did not include any prior offences of dangerous driving, and said:
It sounds like a lesser category, so to speak, in terms of sentencing if the matter ends up with guilty pleas.
- His Honour then adjourned the charges to 17 September 2012.
12 On 17 September 2012 the appellant appeared before the same magistrate and entered pleas of guilty to each of the charges. The dangerous driving charge was read out in the terms in which it appears in
(Page 7)
- the prosecution notice referred to above. A pre-sentence report was ordered and the matter was adjourned for sentencing on 22 October 2012.
13 At the sentencing hearing the magistrate commenced by indicating that his Honour was ready to hear sentencing submissions. Duty counsel asked if his Honour wished to hear the facts. The magistrate said that his Honour had received a copy of the statement of material facts. Duty counsel said that those facts were accepted. The statement of material facts has been provided to this court and the facts alleged in it are those summarised above. The facts should have been stated aloud in the Magistrates Court (see s 129(3) of the Criminal Procedure Act 2004(WA)) but there is no dispute on this appeal as to what facts were alleged by the prosecution and were agreed to by the appellant. In any event, the prosecutor commenced his sentencing submissions by giving a brief outline of the material facts.
14 In mitigation duty counsel said that the appellant accepted that the offences were serious. She said that the accident occurred shortly after the appellant had picked her children up from day care. The children were screaming in the back of the car and the appellant turned around to try and calm them down and lost control of the vehicle.
15 It was admitted that the appellant had relapsed into drug use prior to the accident. She had a long history of substance abuse which had commenced at the age of 13. She had been clean of drugs for approximately three years prior to the accident. She had used xanax the day before the accident occurred and had taken her normal prescribed dose of subutex. It was these drugs, or metabolites of them, that were detected in her blood after the accident. Immediately after the accident the appellant had sought counselling and was with the Next Step programme as at the date of sentencing. She had changed her dose of methadone as a result of finding out that she was 12 weeks pregnant.
16 The appellant had made a payment of $2,000 to the injured driver as compensation for the damage done to his vehicle.
17 The appellant was 30 years old at the time of sentencing and had two children aged 2 and 5. The elder child was in school and the younger in day care two days a week, which allowed the appellant time to attend counselling sessions. These sessions included attending Narcotics Anonymous which she had done for three to four years.
18 As a result of the accident the Department of Child Protection took an interest in the welfare of her children and this had resulted in the
(Page 8)
- appellant being under supervision and having to submit to urine tests. Her children were still in her care at the time of sentencing.
Magistrate's sentencing remarks
19 The magistrate commenced his sentencing remarks by noting that the first charge to which the appellant had pleaded guilty was 'dangerous driving occasioning bodily harm in circumstances of aggravation'. He said that the maximum penalty on indictment for that offence was 2 years' imprisonment and that the summary conviction penalty was 18 months' imprisonment or an $8,000 fine. He was incorrect as to the maximum penalty on indictment, but nothing turns on that.
20 His Honour then said:
I note first that the dangerous driving charge was attended by a circumstance of aggravation, namely that Ms Payne was under the influence of drugs. What is apparent from the facts is Ms Payne had shown disregard for the safety of other users of the road, let alone her two young children and her partner. She has driving whilst under the influence of a cocktail of drugs, and has driven in excess of the speed limit in a built up area.
Whilst she has a very limited record of breaches of the Road Traffic Act, her driving on this occasion was serious. Fortunately no greater injury resulted from her driving. To exacerbate her situation, Ms Payne does not stop at the scene, but accelerates away and without offering any assistance to the injured [victim] (ts 6).
21 After considering the appellant's personal circumstances the magistrate concluded that a term of imprisonment was the only appropriate sentence and that suspending that term was not appropriate. He then imposed the penalties that are referred to above.
The appeal against conviction
22 The offence of dangerous driving causing bodily harm can be committed in two ways. First where the driver is, at the time of the incident, under the influence of alcohol, drugs or both to such an extent as to be incapable of having proper control of his or her vehicle. Secondly where, at the time of the incident, the offender drives in a manner that is, having regard to all the circumstances, dangerous to the public or to any person. Those two ways of committing the offence are reflected in s 59A(1) which reads as follows:
(Page 9)
- If a motor vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle -
(a) while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits an offence.
23 The penalties for an offence under s 59A vary depending upon whether the offence is committed under s 59A(1)(a) or s 59A(1)(b) and, in some circumstances, whether it is a first or subsequent offence and whether it is committed in circumstances of aggravation. At the relevant time s 59A(3) and s 59A(3a) provided as follows:
(3) Subject to subsection (3a), a person convicted of an offence against subsection (1) is liable
(a) for a first offence, to a fine of 180 PU or to imprisonment for 9 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 12 months;
(b) for a second or subsequent offence, to a fine of 160 PU or to imprisonment for 18 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 18 months.
(3a) In the case of an offence under subsection (1)(a), or an offence under subsection (1)(b) committed in circumstances of aggravation, the offence is a crime and a person convicted of it is liable to a fine of any amount and imprisonment for 7 years and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 2 years.
Summary conviction penalty: imprisonment for 18 months or a fine of 160 PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 18 months.
(Page 10)
24 The maximum penalties have since been increased, but the relevant penalties are those which applied as at the date of the offences: s 10 Sentencing Act 1995 (WA).
25 Whilst the penalties in s 59A(3) appear to apply generally to offences under s 59A(1) that application is subject to s 59A(3a). The effect of s 59A(3a) is that where the offence is one involving driving under the influence of alcohol or drugs to an extent as to be incapable of having proper control of the vehicle the offence is a crime and subject to a maximum indictable penalty of 7 years' imprisonment and a summary conviction penalty of 18 months or a fine of 160 penalty units. What is clear from this is that driving under the influence of alcohol or drugs such as to be incapable of having proper control of the vehicle is not a circumstance of aggravation but a form of the offence which by its nature attracts the penalty in s 59A(3a).
26 The appellant's counsel argued that the higher penalty in s 59A(3a) only applies where circumstances of aggravation exist. That is to say that even where a person is charged with dangerous driving by reason of being incapacitated by drugs or alcohol under s 59A(1)(a) the higher penalties under s 59A(3a) would not be applicable unless one of the circumstances of aggravation under s 59B(3) was also proved or admitted. If this argument is correct then the lower penalties in s 59A(3) would apply generally in the absence of circumstances of aggravation. But it is not correct. The placement of the commas in s 59A(3a) is critical. The only proper grammatical reading of that subsection having regard to the commas is that the words 'circumstances of aggravation' apply only to offences under s 59A(1)(b).
27 Thus where an offence is alleged under s 59A(1)(b) it will attract the penalties under s 59A(3) unless a circumstance of aggravation is proven in which case it will attract the penalties under s 59A(3a). But that is not so in the case of an offence alleged under s 59A(1)(a).
28 The meaning of the phrase 'circumstances of aggravation' in s 59A was, at the relevant time, provided for by s 59B(3). That subsection has now been repealed and replaced by s 49AB, which is framed in substantially the same terms. I also note that an offence under s 59A(1)(b) committed in circumstances of aggravation now carries a mandatory sentence of imprisonment (though a s 59A(1)(a) offence does not): See s 59A(4A). At the relevant time s 59B(3) provided as follows:
For the purposes of sections 59 and 59A a person commits an offence in circumstances of aggravation if at the time of the alleged offence -
(Page 11)
- (a) the person was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle; or
(b) the person was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 km/h, the speed limit (if any) applicable to that length of road; or
(c) the person was driving the vehicle concerned to escape pursuit by a member of the Police Force.
29 In the present case, the charge was ambiguous in that it referred to the appellant having committed the offence whilst being both under the influence of drugs and in circumstances of aggravation. This confusion was enhanced because the facts referred both to the influence of drugs and to the manner of driving, in particular that the appellant was speeding. Of course the two things are not mutually exclusive, but it was unclear from the face of the charge whether what was alleged was an offence constituted by driving whilst incapacitated by drugs or an offence constituted by driving in a dangerous manner. The reference in the charge to drugs suggested the former, whereas the reference to circumstances of aggravation under s 59B(3) was only consistent with the latter. To make matters worse there was in fact no allegation in the admitted facts that could constitute any of the circumstances of aggravation in s 59B(3).
30 What possibly occurred is that the drafter of the charge, and indeed the magistrate, assumed that driving under the influence of drugs was itself a circumstance of aggravation. As the above analysis demonstrates that is incorrect. Driving under the influence of drugs to such an extent as to be incapable of driving attracts the higher penalty in s 59A(3a) in any event. No reference to circumstances of aggravation is either necessary or appropriate in these circumstances: s 7(3) Sentencing Act.
31 This was not, as alleged, an offence under s 59A(1) committed in circumstances of aggravation. Rather, it was an offence under s 59A(1)(a). The wording of the charge was incorrect. It included an allegation that was arguably irrelevant, but in any event was not supported by the admitted facts. The plea of guilty could not cure the defect in the charge. It was a material defect not because it exposed the appellant to a higher maximum penalty (as the appellant's counsel suggested) but because the charge was ambiguous. While a circumstance of aggravation is not an element of the substantive offence, it was something that, if it existed, and had the effect of exposing the appellant to a higher penalty had to be pleaded. A plea of guilty to this charge involved an implicit
(Page 12)
- acceptance of the pleaded circumstances of aggravation: Caporn v The State of Western Australia [No 2] [2008] WASCA 26.
32 Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction where a plea of guilty has been made. However, before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue v The State of Western Australia [2005] WASCA 102 and Borsa v The Queen [2003] WASCA 254.
33 One circumstance in which a conviction will be set aside is where, upon the admitted facts, the appellant could not in law be guilty of the offence. Whilst the admitted facts here supported a conviction of dangerous driving causing bodily harm they did not substantiate the existence of any circumstance of aggravation under s 59B(3).
34 The allegation of a circumstance of aggravation should not have been included and, to that extent, the appeal against conviction has merit. As the charge is ambiguous but the appellant does not dispute that she was guilty of an offence under s 59A(1)(a) I would allow the appeal against conviction but only to the extent of deleting any reference to circumstances of aggravation within the meaning of s 59B(3).
Appeal against sentence
35 For the reasons stated above the appeal against sentence must also be allowed. References to the existence of a circumstance of aggravation at least leaves open a significant possibility that this sentencing exercise was one that miscarried. That is because the appellant pleaded guilty to a charge that contained an allegation of circumstances of aggravation within the meaning of s 59B(3) when no such circumstances existed.
36 This error did not result in a higher maximum penalty because the admitted facts supported an offence of driving whilst incapacitated by drugs under s 59A(1)(a). However, if, as the charge purports, there was in fact both circumstances of the type that fit within s 59B(3) and the appellant was driving under the influence of drugs the offence would in practical terms be of a much more serious quality.
37 Though the magistrate referred to no s 59B(3) circumstance of aggravation in terms and there is little to suggest that his Honour was under a misapprehension that such circumstances existed that possibility cannot, in all the circumstances, be discounted. This is particularly so given that his Honour referred to the offence as being one committed in
(Page 13)
- circumstances of aggravation. The appropriate course, therefore, is to resentence the appellant.
Resentencing
38 Given that it falls to me to re-exercise the sentencing discretion it is appropriate to take into account not only the circumstances as then existed as at 22 October 2012 but any change in circumstances which has occurred thereafter. The appellant has filed an affidavit in which she states that at the time of the offences she was pregnant but subsequently had a miscarriage. She is now pregnant again and due to give birth on 15 May 2013. She has a pelvic dysfunction and has previously had difficulties carrying children. She finds it painful to lie down.
39 The appellant served two months of her sentence before being released on bail on 21 December 2012. Since that time she has been living in permanent rental accommodation with her partner and children. She has also continued on the Next Step programme and on a course of methadone. She has also been referred for counselling and has a new case worker. She has provided letters from her mother, mother-in-law and brother indicating that they are supportive of her efforts to control her drug habit and will provide assistance to her and her partner in caring for the children.
40 In these circumstances, and particularly bearing in mind that the appellant has already spent two months in prison, I am satisfied that the appropriate penalty now is a suspended sentence of imprisonment. I consider that the sentence for the second offence of 12 months' imprisonment should be viewed in the light of the total offending. The second offence formed an integral part of the accident and whilst in itself serious does not now justify the appellant being returned to custody. Suspended sentences will sufficiently reflect the seriousness of this offence and act as both a personal and general deterrent. They will also serve to encourage the appellant to continue with her efforts towards rehabilitation. The sentences will be reduced by 20% to reflect the guilty pleas: s 9AA Sentencing Act, Forkin v The State of Western Australia [2013] WASCA 51.
41 As regards the periods of disqualification, the magistrate erred in that he considered that it was open to him to order that some of those periods could be made concurrent. That is not possible where the disqualifications are ordered under s 49(1) the RTA: s 49(8) RTA, Mathews v Whalley [2010] WASC 165 [63].
(Page 14)
42 If the orders for concurrency were set aside the total effective period of disqualification would be greater than was originally intended and indeed, in my view, greater than would be appropriate. For this reason I will reduce the periods of disqualification. However, since those periods will be cumulative either by virtue of s 49(8) or by order of the court they will result in the same total period of disqualification that was intended by the magistrate.
43 The orders therefore will be as follows:
SJA 1148 of 2012
1. Leave to appeal granted.
2. Appeal against conviction allowed to the extent of deleting reference to the circumstance of aggravation.
SJA 1144 of 2012
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. The sentences imposed by the magistrate be set aside and in lieu thereof the appellant be sentenced as follows:
(a) charge 8627/12 - 12 months' imprisonment suspended for 12 months; disqualification for 18 months;
(b) charge 8628/12 - 8 months' imprisonment suspended for 12 months; disqualification for 9 months cumulative;
(c) charges 8629/12 and 8630/12 - same penalties as imposed by the magistrate (except to remove reference to the disqualification on charge 8630/12 being concurrent) (the total period of disqualification being 36 months).
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