Pick v Van Den Ende

[2003] WASCA 258

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PICK -v- VAN DEN ENDE [2003] WASCA 258

CORAM:   WHEELER J

HEARD:   24 SEPTEMBER 2003

DELIVERED          :   24 SEPTEMBER 2003

PUBLISHED           :  29 OCTOBER 2003

FILE NO/S:   SJA 1053 of 2003

BETWEEN:   SHAYNE GREGORY PICK

Applicant

AND

GARTH VAN DEN ENDE
Respondent

Catchwords:

Sentencing - Natural justice - Turns on own facts

Legislation:

Nil

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Appellant re-sentenced

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Ms L J Keane

Solicitors:

Applicant:     In person

Respondent:     State Director of Public Prosecutions

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

Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996

Lowndes v R (1999) 195 CLR 665

Case(s) also cited:

Nil

WHEELER J:

1.  Background

1. On 1 May 2003 the Appellant was convicted following pleas of guilty before the Learned Magistrate Mr Cullen SM of

   -5 counts of driving whilst legally disentitled;

   -1 count of driving with a blood alcohol level in excess of 0.08;

   -1 count of driving a vehicle with false registration plates;

   -1 count of driving an unregistered vehicle; and

   -1 count of stealing a motor vehicle within the meaning of s 371A of the Criminal Code.

2. On 2 May 2003 the Learned Magistrate sentenced the Applicant to a total of 2 years' imprisonment.  The Applicant was not made eligible for parole.

3. The principles upon which an appellate court must approach an appeal from a decision in the exercise of discretion are well established.  It is not sufficient that an appellate court may have taken a different view.  It must be shown that the court at first instance has failed to properly exercise its discretion.  Lowndes v R (1999) 195 CLR 665.

2.  The Appeal Against Conviction

1. The applicant appeals against his conviction in respect of the stealing and in respect of sentence on all charges.

2. Dealing with stealing first, it is well established that there must be a strong case and exceptional circumstances before there is justification for interfering with a conviction based on a plea of guilty.  Although not exhaustive, the most commonly recognised circumstances are:  where the appellant did not understand the charge and did not intend to admit it; where on the admitted facts, the appellant could not have been convicted; or where the plea was obtained by an improper inducement, fraud or the like.  The relevant authorities are cited in Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996.

3. In relation to the stealing conviction, the appellant's account of the facts is very close to that which was given to the court by counsel representing him on the day.  Counsel told his Worship that the appellant was given the vehicle by a friend and at the time he believed it to be legitimately owned by the friend, and that he had it for about 2½ days.  He said that the circumstances in which he was informed that it was stolen were that he ran into some people who owed him money, tried to seek the money from them, and was told that the car was stolen.  Counsel said that the appellant drove it anyway because just prior to being told that the vehicle was stolen he had seen a person named Mark who had threatened him and his children.  He had taken his children to a friend's house and, after finding out the vehicle was stolen, was simply proposing to continue to drive to his own house to lock it up and gather together some possessions in case the house was damaged.

4. Before me, the appellant said that the account given by counsel was close to being accurate, but that, while he was told the vehicle was stolen, he couldn't be sure.  He told me that he said to himself "It can't be", since he had had the keys with the immobiliser given to him and that the vehicle had even been sitting in his yard when he was visited by a police officer for other reasons the day previously.  The appellant said that he explained the circumstances to counsel but that he was advised to plead guilty on the basis that he should plead guilty to everything, fast track the matters and get a lighter sentence.

5. It should be noted further that there was an apparent initial hesitation on the appellant's part to plead guilty to the charge of stealing the vehicle, that his Worship enquired whether he understood the charge, and that he then entered a plea of guilty after a further brief consultation with counsel.  It is not suggested that he was not present in court when counsel outlined the circumstances to his Worship or that he did not hear or understand what was said on his behalf.

6. The matters put before me by the appellant are somewhat equivocal.  It is not entirely clear whether he had some reservations about what he was told by the people who told him the car was stolen or whether he positively disbelieved them.  However, assuming that his state of mind may have been such that there may have been a defence available to him in relation to the charge, nevertheless it seems to me that he has not demonstrated circumstances in which he should be permitted to withdraw his plea of guilty.  He understood the nature of the charge and the effect of a plea of guilty.  He pleaded guilty on rational grounds in the expectation of a lighter sentence.  The advice he was given, which was to the effect that a fast track plea of guilty would attract a lighter sentence, was correct.  Further, the account which was given to his Worship by counsel, is so closely aligned with what the appellant said to me that it can only have been given on the appellant's instructions.  I would therefore dismiss the appeal against conviction.

3.  Sentence appeal

1. There are a number of grounds in relation to the appeal against sentence.  Effectively, they all converge in suggesting that matters of mitigation were inadequately put to, or inadequately understood by, his Worship.  In my view, there has been a failure of natural justice in this case which should lead to a quashing of the sentences and the appellant being sentenced anew.  The view that I take is perhaps a rather generous reading of the appellant's grounds of appeal, but that seems to me to be appropriate where the appellant is unrepresented and where, at the hearing of the appeal, I invited the respondent to deal directly with this point.  It is a point in relation to which the respondent's counsel submitted that she could "see the difficulty".

2. The difficulty arises in this way.  A very detailed plea in mitigation was put to his Worship, as I have noted.  As it was essentially repeated and embellished before me by the applicant, I think it is preferable to look at what was in fact said to his Worship.  Because the account was so detailed, I summarise it somewhat.  Counsel said that the background to the offences began when the appellant was asked by an acquaintance by the name of Mark to look after a boat which he was having difficulty in keeping.  Mr Pick did so.  One day he came home and found the boat was gone.  He rang Mark and asked why he had simply taken it without notice, and it then appeared that it had been stolen.  The owner of the boat, who Mr Pick believed to be associated with a motorcycle gang, was very angry.  Thereafter, the appellant's house was burnt.  The appellant moved to a different house.  He lived in the new house with his de facto and his two children and her four children.  The family received a variety of threats.  He took that matter to the police, showing them threatening mail which he had received.  He also received many threatening telephone calls.  In addition, people drove past his home at night revving their engines, and he received home‑made fire bombs in his yard.

3. I should note that at the hearing of this appeal there was tendered an affidavit on behalf of the respondent.  That affidavit demonstrates that the house in which the appellant was living was indeed burnt.  However, the account which was given to the police by the appellant and his de facto was that the fire had probably been caused by one of the younger children playing with a lighter, and the investigating officer accepted that that was the probable explanation.  The Pinjarra police had been shown some threatening correspondence and had carried out some investigations in relation to it, but were unable to ascertain its source.  There does not appear to have been a record of threats of any other kind.

4. It was said by the appellant's counsel to his Worship, that the first of the driving without a licence offences, which also involved the stolen vehicle (which was bearing false registration plates), occurred in the circumstances to which I have already referred.  The explanation given for the offence on 23 January is not entirely clear.  It is simply said that the appellant had been followed by the person Mark and that he "panicked" and drove trying to get away from him.  The police account showed that he had been apprehended when driving into a service station.  On 7 February he said that he was with his new partner (the strain of the events which I have recounted having led to his separation from his former de facto).  She was having chest pain.  She initially drove the vehicle but was unable to continue and the appellant took over and drove her to the hospital.  That explanation is largely consistent with an account which he gave to police at the time.

5. On 28 February it was said that he had gone into hiding with his partner, Mary and that for a time there had been no harassment by the person Mark.  He said they went to a nightclub with some of Mary's friends but unfortunately the person Mark entered the nightclub and there was a fight of some kind.  He put Mary into a taxi but he remained to assist Mary's relatives.  He was intending to have one of her relatives drive him home, but the person in question received a head injury.  Bottles had been thrown at the vehicle as he was driving away.  He felt that he had to drive to get away from the situation.  On this occasion, he also had a blood alcohol content calculated at .139 at the time of driving.

6. Finally, on 13 March, he said that he and his then partner were driving on the Eyre Highway, in the hope of leaving the whole unfortunate situation behind them.  However his partner became very fatigued, having been driving for some considerable time, and he therefore drove the vehicle for a short period before being apprehended.

7. The appellant's personal circumstances were explained to his Worship.  His driving record was appalling.  He has 13 prior offences of driving under suspension in the last 10 years, not counting the offences in respect of which he now appeals.  I have not troubled to go back any further than the last decade.  Indeed, he had a significant record of other offences, some of them very serious, such as armed robbery.

8. It is fair to accept Mr Pick's own description of his criminal record, that he has been a "complete idiot".   However, it is also to be noted that over the last decade his offences have gradually been getting further apart.  This is not simply because he has been in prison for longer periods of time; rather, since about 1997, his offending has decreased.  Although he has a significant history of substance abuse, his record of offending reveals no drug related convictions since 1997.  He has, however, been charged with a cannabis offence since his imprisonment.  His Worship had all these factors before him, together with a report from Graylands Hospital, which apparently found some inconsistencies in the history which he had given in relation to some matters.

9. Having heard lengthy submissions in mitigation, his Worship took time to consider the situation.  He sentenced the appellant the next day.  However, on that day, in relation to the various reasons which have been given for the appellant's driving, his Worship said:  "The stories are inconsistent with the situation and my view is that all of these matters are fabricated for you to extricate yourself with respect to these particular charges".  His Worship further observed:  "I do not, as I've said, accept the explanations for your driving".

10. The problem with that approach, is that his Worship had not prior to that time said anything to indicate to the appellant's counsel that the appellant's account would be disbelieved wholesale.  No issue had been taken with the submissions in mitigation by the prosecutor.  While I accept that a court does not have to accept a submission in mitigation, even when no issue is taken by the prosecution, and while I accept that aspects of the appellant's account do appear to be somewhat exaggerated, particularly in the light of the affidavit which is now before me on behalf of the respondent, his Worship went much further than simply having reservations about aspects of the appellant's account, or not accepting portions of it.  Rather, he rejected the entirety of it.  Before he could do so, natural justice in my opinion required that he give some indication to the appellant's counsel of the course which he proposed to take.  As the appellant pointed out to me, and as is clear from the respondent's affidavit, there was at least some material capable of supporting aspects of the appellant's account, which could have been obtained and given in evidence before his Worship, had his Worship indicated the course which he proposed to take.  It was on that basis that, on the last occasion on which the appellant appeared before me, I indicated that I would allow the appeal and quash the sentences.

4.  Re‑sentencing

1. Since the last occasion on which the appellant appeared before me, I have had the advantage of reading the pre‑sentence report and report from Graylands Hospital.  The pre‑sentence report contains, as may be expected from the history which I have outlined, little by way of mitigation.  It refers to a history of substance abuse, and a family history of violence and alcohol use on the part of the appellant's father.  It refers to a prior de facto relationship of several years duration and it refers to the fact that the appellant has spent considerable periods in employment, despite his history and despite his having left school after year 9.  It supports, to an extent, the appellant's claim that he is in poor health.  However, it also refers to his extensive record, his recounting of events as being "long‑winded and disjointed" and probably "embellished", and it refers also to his extremely unsatisfactory performance on prior community supervision orders.

2. So far as the facts of the offences are concerned, as I indicated to the appellant, I do for the purpose of sentencing him, accept in broad terms what was put to his Worship by the appellant's counsel.  It seems to me that there may well have been elements of exaggeration or embellishment, but I accept that there was at least a core of truth in the account.  I accept that the appellant was feeling threatened by some person or persons, and that the driving occurred during a period when he was experiencing considerable stress for that reason.

3. However, it is also to be noted that on many of the occasions in question it would appear to an objective observer that driving was by no means the only course open to the appellant.  In relation to the incident on the Eyre Highway, for example, there seems to have been no reason why they could simply not have paused to rest for a time.  In relation to the nightclub episode, it would appear to have been preferable, since the appellant was the focus of the man Mark's interest, for him to have left the scene in the taxi with his de facto.  In relation to the driving on 23 January, the reason for the appellant's need to drive on that occasion, particularly as he was observed to have a female passenger, is unclear to say the least.

4. So far as the driving while under suspension is concerned, then, the appellant presents as a person with a very significant history of disregard for the law in that respect.  The appellant's driving while under suspension was unfortunately not an uncharacteristic aberration, but was part of a long history of continuing disobedience to the law, which increases the need to impose an appropriately deterrent penalty.  I do not overlook the fact that there were particular reasons advanced in each case for the driving but nevertheless it does appear that the use of a vehicle seems often to have been the appellant's first, rather than last, resort.  So far as the stealing was concerned, it was not the most serious offence of its kind, given the fact that the appellant, on the account presented to his Worship, only realised part way through the driving of the vehicle that it was indeed stolen.

5. Since I have quashed the sentences imposed by his Worship by reason of the failure to afford the appellant natural justice, it falls to me to sentence the appellant afresh.  Save for the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 in relation to the stealing, I would impose a sentence of 6 months' imprisonment.  In relation to the driving on the Eyre Highway, which I understand to be the last in the series of driving offences, I would impose a term of 6 months' imprisonment cumulative on the stealing.  In relation to the driving arising out of the incident at the nightclub, when the appellant not only drove but drove while intoxicated, I would impose a sentence of 6 months' imprisonment in respect of each of those offences, concurrent with each other but cumulative on the sentences I have already imposed.  In relation to all of the other offences, save for those relating to the false registration plate and the lack of vehicle licence for the vehicle, I would impose a sentence of 6 months' imprisonment to be concurrent with the sentence I first announced, that is the stealing.  That is a total effective term of 18 months' imprisonment, which is to take effect from the date of the appellant's sentencing before his Worship, that is 2 May this year.  Reduced by one third, as the legislation requires, the terms I impose are of 4 months in relation to the stealing, 4 months conviction in relation to driving on Eyre Highway, and 4 months cumulative in relation to driving with a blood alcohol content in excess of .08  There will be 4 months concurrent sentences, save as set out below, in respect of the other offences

6. In relation to the false plates and the lack of vehicle licence, it seems to me that the fines of $50 and $100 respectively imposed by his Worship are appropriate.  Having regard to the appellant's appalling record, notwithstanding that it has improved somewhat in recent years, and having regard also to his very poor performance whilst under supervision in the past, there is simply not enough pointing in favour of parole for me to be persuaded to make the appellant eligible for parole.  Indeed, it seems to me that to do so would be setting the appellant up for failure and for a further term of imprisonment.  The terms of disqualification remain as his Worship imposed them.