Peters v The Director of Public Prosecutions - [2023] WASC 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PETERS -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2023] WASC 28
CORAM:   FORRESTER J
HEARD:   3 FEBRUARY 2023
DELIVERED          :   3 FEBRUARY 2023
PUBLISHED           :   9 FEBRUARY 2023
FILE NO/S:   SJA 1066 of 2022
BETWEEN:   BEAU ANDRE PETERS
Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1066 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 9133/2022

Catchwords:

Criminal law - Single judge appeal - Appeal against penalty - Whether magistrate erred in law imposing permanent disqualification of licence - s 60A and s 60B Road Traffic Act 1974

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal is granted
Appeal allowed
The permanent disqualification on PE 9133 of 2022 is set aside
The appellant is disqualified from holding or obtaining a driver's licence for a period of 4 years and 6 months

Category: B

Representation:

Counsel:

Appellant	:	H W Glenister
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	William Gerard Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Nil

FORRESTER J:

(This judgment was delivered extemporaneously on 3 February 2023 and has been edited from the transcript.)

Introduction

On 11 April 2022, the appellant was convicted on his own plea of guilty of a charge of driving a motor vehicle at a speed of 155km/h or more to escape pursuit by a police officer, otherwise known as aggravated reckless driving, contrary to s 60A(1) and s 49AB(1)(c) of the Road Traffic Act 1974 (WA) (RTA).
On 5 August 2022, the appellant was sentenced to a term of 6 months' imprisonment and was permanently disqualified from holding or obtaining a driver's licence.
The appellant appeals against the order permanently disqualifying him from holding or obtaining a driver's licence.

Facts

At approximately 12.10 am on 9 March 2022, the appellant rode an unlicensed motorcycle on Thomas Road, Forrestdale. He was seen by police officers in a mobile traffic vehicle who detected him travelling at 123km/h in a 80km/h zone.
The officers activated their lights and sirens in an attempt to get the appellant to stop. However, he increased his speed, in an attempt to evade them. He was tracked by Police Air Wing, onto Nicholson Road and then Roe Highway. At times, his speed reached over 200km/h. Police again tried to stop him as he passed them on Roe Highway, but he continued on to an address in Morley, again travelling at speeds over 150km/h as he did so.
Police attended the address and found the appellant outside. He denied riding the motorcycle but, when advised he had been tracked to the house, made no comment.
The appellant had one prior conviction for aggravated reckless driving, for which he was sentenced on 17 April 2018.

Sentencing

In sentencing, the learned magistrate found that the offence fell towards the upper end on the scale of seriousness, saying:
Certainly, it's past the mid-range, but it's not at the very upper range.[1]
[1] Transcript, WA Police v Beau Andre Peters, Magistrates Court of Western Australia, 5 August 2022, 4 (Transcript 5 August 2022).
Her Honour characterised the speeds reached by the appellant as being 'horrendous', and noted that he 'encroached into the suburbs, travelling again at a horrendous speed.' Her Honour did observe that she had not been told there was any other road user on the road, and found that the greatest risk of harm was to the appellant himself.[2]
[2] Transcript 5 August 2022, 4.
Her Honour stated that she was required to disqualify the appellant's licence permanently because it was a subsequent offence.[3]
[3] Transcript 5 August 2022, 4.
The prosecutor sought to clarify this with her Honour after the sentencing, and her Honour confirmed that the lifetime disqualification was on the basis that it was a 'second aggravated reckless'. Her Honour invited the parties to correct her if she was wrong, but neither party sought to do so.[4]
[4] Transcript 5 August 2022, 7.

Statutory framework and legal principles

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to impose a permanent disqualification under s 60B RTA is a decision which may be appealed.[5]
[5] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[6] meaning that the ground is required to have a rational and logical prospect of succeeding.[7] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[8]
[6] CA Act s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[8] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[9]
[9] CA Act s 14(2).

Ground of appeal

The sole ground of appeal is that the learned magistrate erred in law by misapprehending the mandatory minimum driver's licence disqualification period for a second offence contrary to s 60A(1) of the RTA.
The appellant points to s 60B(5)(c) of the RTA, which provides that, for a second offence in the circumstance of aggravation referred to in s 49AB(1)(c), the mandatory minimum disqualification was not a permanent disqualification, but disqualification for a period of not less than 2 years.

Ground of appeal conceded

The respondent properly concedes that the ground of appeal has been made out. To the extent it is necessary to establish that the error was material to the exercise of the sentencing discretion,[10] the respondent also concedes that the error was a material one.[11]
[10] As to whether materiality must be established, see Crocker v Vinicombe [2019] WASC 416 [42] - [54]; JAD v McRae [2022] WASC 220 [30] - [33].
[11] Respondent's submissions [5] - [6].
Having regard to the difference between the disqualification period imposed and the period which might have been imposed had the learned magistrate been aware of the correct mandatory minimum disqualification, the respondent does not submit that the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

Disposition

The ground of appeal having been made out, the appeal should then be allowed.
As the disqualification was imposed in the exercise of powers pursuant to the RTA, it was not part of the sentence imposed by the learned magistrate.[12] Accordingly, it is not necessary to set aside the sentence imposed on the appellant; it is only necessary to set aside the permanent disqualification and exercise the discretion afresh to impose an appropriate period of disqualification.
[12] Lawson v The State of Western Australia [2018] WASCA 129 [63] - [64].
In those circumstances, in my view, it is not necessary for the matter to be remitted to the learned magistrate in order to set the appropriate disqualification period. This court is in as good a position to re-exercise the discretion as her Honour.

Imposition of a new period of disqualification

I accept the respondent's submission that the question of the length of the disqualification is a matter of discretion informed by the same considerations which informed the sentencing of the appellant. It must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment.[13]
[13] Gray v The State of Western Australia [2015] WASCA 108 [140].
In the context of sentencing, it is well-settled that, where a statutory minimum penalty applies, it is to be imposed for the least serious category of case. Further, a sentencing judge, when sentencing an offender who is subject to a statutory minimum penalty, must determine, having regard to all relevant sentencing factors, where the offending falls in the range between the least serious category of offending, for which the statutory minimum penalty is appropriate, and the worst category of offending, for which the maximum sentence is appropriate.[14]
[14] Eldridge v The State of Western Australia [2020] WASCA 66 [31]; The State of Western Australia v Clark [2020] WASCA 103 [61] - [64].
In my view, the same approach is to be taken in relation to determining the appropriate period of disqualification to be imposed where an offender is subject to a statutory minimum period of disqualification in relation to an offence.
The appellant does not take issue with the learned magistrate's finding as to the seriousness of the offence.
The appellant had a difficult childhood, being raised mainly by his grandmother, particularly after his mother effectively rejected him when he was 13 years of age. His father was in prison for most of his childhood. He attended school until year 11, after which he worked for most of the next 12 years.
However, during that time, he also amassed an appalling traffic record and had problems with substance abuse. As a result, in August 2015, he was sentenced to his first term of imprisonment. After that, his long-term relationship ended and he lost his employment, and he abused methylamphetamine. He breached his parole and was taken back into custody. On his release, he had periods of homelessness and remained unemployed, and had a casual relationship with his former partner, as a result of which he now has a daughter, born in August 2018, to whom he is greatly attached.
The appellant was remanded in custody on the charge of aggravated armed robbery on 31 October 2018. He did not seek bail, and remained in custody until the charge was discontinued in February 2020. By the time of his release, his relationship with his former partner had soured, and he had much less access to his daughter, and that access ceased entirely in March 2021, after which he engaged in further offending.
The appellant's counsel submitted at sentencing that, prior to the reckless driving, a police car tried to stop him. He had just had an argument with his then partner, was driving without a licence, and was in possession of methylamphetamine. As a result, he made a 'split second' decision to go around the police car, but then was pursued.[15]
[15] Transcript, WA Police v Beau Andre Peters, Magistrates Court of Western Australia, 29 July 2022, 17.
The appellant had made attempts to engage in programs while on remand, but his opportunities were limited due to his prison status and COVID-19 impacts. He was motivated by the prospect of resumed contact with his daughter and a desire to maintain his relationship with his grandmother. He pleaded guilty, which the learned magistrate must have regarded as being at the earliest reasonable opportunity, given that she ultimately discounted his sentences by 25%.[16]
[16] Transcript, 5 August 2022, 4.
At the time of sentencing, the appellant was serving a 20-month sentence from 9 March 2022, imposed in the District Court. It is also necessary to take into account the cumulative 9-month disqualification period ordered by the learned magistrate on charge AR 4147/20 as well as the 2-year mandatory disqualification period imposed for failing to stop in relation to this offence. The order of cumulation on charge AR 4147/20 remains undisturbed by the order allowing the appeal, and thus any period of disqualification substituted will be in addition to that
9-month disqualification.
There are very few comparable cases, and those which do exist are incapable of establishing a tariff or a range of appropriate disqualifications. The respondent has referred to other cases in which there was a mandatory minimum disqualification of 2 years, but acknowledges their limitations, given the different offences involved.
In my view, the appellant's riding in this case was correctly characterised by the learned magistrate as 'horrendous', and 'towards the upper end of the scale of seriousness.' The appellant rode his motorcycle at speeds in excess of 200km/h at times, including in suburban areas. While there was no specific evidence as to other traffic being on the roads, it was not at a time of night where there would be no traffic, and there was a very real danger that, at those speeds, the appellant would not even be seen by a driver pulling into his path, and there was an even greater danger that the appellant would not be able to avoid such a driver. The fact that he was on a motorcycle did not, in my view, materially reduce the danger of serious injury or fatality to a driver in the event of a collision.
The appellant was first signalled to stop in Thomas Road, Forrestdale, and was apprehended at an address in Morley, more than 40km away. As such, his conduct was prolonged and persistent. He had to be tracked by the Police Air Wing, such was the inherent danger in a road pursuit.
Having regard to the circumstances of the offence, the personal circumstances of the appellant, which include his likely future prospects of employment, his plea of guilty and other mitigating factors, it is my view that an appropriate disqualification period is one of 4 and a half years. As previously indicated, and for the avoidance of doubt, the 9-month disqualification on charge AR 4147/20 is cumulative on that 4 and a half-year disqualification.

Orders

Leave to appeal is granted.
The appeal is allowed.
The appellant's permanent disqualification from holding or obtaining a driver's licence imposed by the learned magistrate on 5 August 2022 on charge PE 9133 of 2022 is set aside.
The appellant is disqualified from holding or obtaining a driver's licence for a period of 4 years and 6 months, cumulative on the
9-month disqualification on charge AR 4147 of 2020.
The 2-year disqualification on charge PE 9136 of 2022 is concurrent with the disqualification ordered today.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
9 FEBRUARY 2023