Quartermaine v The Queen - [2000] WASCA 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: QUARTERMAINE -v-THE QUEEN [2000] WASCA 107

CORAM: KENNEDY J
PIDGEON J
WALLWORK J

HEARD: 14 MARCH 2000

DELIVERED : 19 APRIL 2000

FILE NO/S: CCA 209 of 1999

BETWEEN: EDGAR LEO QUARTERMAINE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Stealing a motor vehicle and wilfully driving the vehicle in a manner that constituted reckless driving - Two breaches of bail conditions - One offence of driving while legally disentitled to do so - Effective sentence of 3-1/4 years - Whether excessive

Legislation:

Nil

Result:

Appeal allowed
Sentence varied

Representation:

Counsel:

Applicant: Mr J A Sutherland
Respondent: Mr K P Bates & Mr A S Derrick

Solicitors:

Applicant: McDonald & Sutherland
Respondent: State Director of Public Prosecutions

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

Carter v Denham [1984] WAR 123
Lowndes v The Queen (1999) 73 ALJR 1007

Case(s) also cited:

Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994
Colbung v The Queen [1999] WASCA 138
Huynh v The Queen, unreported; CCA SCt of WA; Library No 950689; 1 December 1995
Jarvis v The Queen (1993) 20 WAR 201
McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
R v Heferen (1999) 106 A Crim R 89
R v Shaw (1989) 39 A Crim R 343
Rankins v The Queen, unreported; CCA SCt of WA; Library No 940669; 1 December 1994
Veen v The Queen (No 2) (1988) 164 CLR 465
Yarran v The Queen, unreported; CCA SCt of WA; Library No 960556; 20 September 1996

KENNEDY J: On 14 September 1989, the applicant was presented in the District Court on an indictment containing the single count of having stolen a motor vehicle and then having wilfully driven that vehicle in a manner which constituted reckless driving. He pleaded guilty to this count. Pursuant to s 32 of the Sentencing Act 1995, he also pleaded guilty to a number of charges pending in the Court of Petty Sessions, of which only three are now material, except to the extent that one of the other charges, an assault occasioning bodily harm, attracted a sentence of 3 months' imprisonment to be served cumulatively upon the other sentences in respect of which custodial sentences were imposed. The three charges, the sentences in relation to which are the subject of the present application for leave to appeal, comprise two breaches of bail conditions and an offence of driving whilst legally disentitled to do so. In respect of the stealing offence, the learned sentencing Judge imposed a sentence of 2‑1/2 years' imprisonment. In respect of the breaches of bail conditions, he imposed a sentence of 3 months' imprisonment on each charge, those sentences to be served concurrently with each other but cumulatively upon the sentence for stealing the motor vehicle. For the offence of driving whilst legally disentitled, he was sentenced to 6 months' imprisonment, which was also directed to be served cumulatively on the sentence for stealing the motor vehicle. In each case it was ordered that the applicant be eligible for parole.
The facts in relation to the count of stealing in the indictment were that, at about 11.35 pm on Sunday, 10 April 1999, the applicant was at the Ampol Service Station in Thornlie. He saw a Ford Fairmont sedan parked outside the front door of the service station. The key was in the ignition, and the engine was running. The applicant got into the vehicle and drove off very quickly, causing the tyres to squeal. He drove the vehicle through the adjacent carpark at a high speed and started to swerve in such a manner as to cause the rear of the vehicle to slide from side to side. He then attempted to leave the carpark by driving over a kerb and between two trees in order to gain access to Spencer Road. He misjudged his position and he hit one of the trees, causing damage to the vehicle amounting to nearly $8,000. At the time of the impact, the vehicle was travelling at a speed of approximately 70 kilometres an hour.
The applicant was not wearing a seat belt and, as a consequence, he hit his head on the windscreen, smashing it and cutting his face. He left the vehicle, abandoning his hat, and he ran some 50 to 100 metres before he was caught and held until the police arrived. He underwent a breath test, which gave a blood alcohol reading calculated back to 0.114.
In relation to his breaches of bail conditions, on 25 March 1999, the applicant was granted bail in respect of other alleged offences, one of the conditions of which required him to attend at the Armadale Court of Petty Sessions on 27 April 1999. On 4 April 1999, he entered into another bail undertaking, which also required him to attend at the Armadale Court on 27 April 1999. He failed to appear as required and a Bench Warrant was issued. At about 10.30 am on 4 May 1999, the applicant was located at the Armadale Court. He was then arrested and the charges of breaching bail were preferred.
In relation to the charge of driving whilst legally disentitled, the facts presented to the Court were that, at about 7.45 pm on 13 February 1999, the applicant was observed driving a Ford sedan in Thornlie. Coming to the intersection at the corner of Berehaven Road and Spencer Road, which is controlled by a stop sign, he failed to stop at the sign and accelerated heavily through the intersection, turning into Spencer Road. During the execution of this turn, the applicant caused the vehicle to slide sideways and to fishtail up Spencer Road for a distance of approximately 20 metres, narrowly missing another vehicle travelling in the same direction in the kerbside lane. He was not the holder of an appropriate driving licence for that class of vehicle, his licence having been suspended on 30 November 1998 until 21 August 1999 for an offence of driving while under suspension.
The penalty for stealing a motor vehicle and then wilfully driving it in a manner which constitutes the offence of reckless driving is imprisonment for 8 years. The applicant had two previous convictions for stealing a motor vehicle. He had in each of these instances been a passenger in the vehicle, and had therefore "used" it in terms of s 371A of the Criminal Code. The learned sentencing Judge, in commenting upon the offence, observed that the community regarded this kind of crime with great concern, although the present offence was not at the higher end of the scale. The appropriate sentence for the offence, his Honour considered, would have been one of 3 years' imprisonment, but he gave credit to the applicant for his fast track plea of guilty. He noted, however, that the applicant had been apprehended in circumstances which warranted only a small discount. A discount of 6 months was allowed.
The penalty for a failure to comply with the requirements of a bail undertaking is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both. Within the space of two years prior to the date of his sentencing in the District Court, the applicant had seven convictions for similar offences in the Children's Court and one in the Court of Petty Sessions. He received no punishment for four of the charges in the Children's Court, for two of the charges in that court he was given a youth community based order and for his final charge in the Children's Court he was fined $100. For the conviction in the Court of Petty Sessions, he was fined $200 on 23 March 1999. The learned sentencing Judge, with respect to each of the present breaches of a bail undertaking, sentenced the applicant to a term of imprisonment of 3 months. Those sentences were ordered to be served concurrently, but cumulatively upon the sentence of 2‑1/2 years for the stealing offence.
The applicant had four prior convictions for driving without an appropriate licence. Two of these offences occurred while he was already under suspension. The applicant, having been convicted of the last two mentioned offences at the same time, the present offence is to be treated as a second, and not a third, offence - see Carter v Denham [1984] WAR 123. The maximum sentence in these circumstances is a fine of not less than 20 penalty units or more than $2,000, or imprisonment for a term not exceeding 18 months, or both a fine and imprisonment. His Honour sentenced the applicant to a term of imprisonment of 6 months for this offence, to be served cumulatively upon the sentence for the stealing offence.
Although the learned sentencing Judge referred to a number of the sentences being served cumulatively upon the sentence for the indictable offence, it is apparent that he intended that those sentences should be served cumulatively upon each other for, as he indicated, the effect of the sentences which he imposed was an overall sentence of 3‑1/2 years (including the sentence for the assault previously referred to).
The applicant was aged 18 years and 3 months when the sentences which are the subject of the present application were imposed. He had first appeared before the courts at the age of eight. As a juvenile, he had convictions for stealing, receiving, burglaries, giving a false name, stealing motor vehicles, assault, disorderly conduct, breaches of bail, wilful damage and various traffic related offences. He was brought up by his mother and he comes from a background of domestic violence and alcohol abuse. He has had very little contact with his father who, it appears, has never acknowledged the applicant or his brother. He left school at the age of 16 without having completed his Year 10 certificate. He commenced to attend Thornlie TAFE in order to complete his certificate; but he failed to complete the course. Since leaving school he has never been employed. He has an extensive history of substance abuse, commencing with the occasional use of cannabis and alcohol at the age of 12. His cannabis use progressed to daily use during his early teens and he has maintained that level of use. So far as alcohol is concerned, the applicant claimed that he drank mainly at weekends but he then consumed approximately two bottles of spirits every weekend. He began using heroin frequently and, before his being taken into custody, he was spending approximately $400 to $500 a week to support his daily heroin use. He was also taking amphetamines at a cost of approximately $250 per month prior to his being taken into custody. He has been subject to numerous juvenile justice orders, of which he has breached three.
A pre‑sentence report which was before his Honour indicated that the main areas of concern for the applicant included his extensive use of various substances and his lack of education and employment opportunities. His high incidence of re‑offending was said to be related to the influence of his peers. However, he has never previously been imprisoned or subjected to a period of detention.
It was argued for the applicant that the sentences were excessive in consequence of the learned sentencing Judge having failed properly to consider the maximum sentences for the offences, the standards of sentencing customarily observed for offences of this nature, the place which the criminal conduct in question occupied in the scale of seriousness of crimes of this nature, the applicant's personal circumstances, particularly his age, and the fact that he pleaded guilty to the indictable charge at the earliest available opportunity. It was submitted that the most significant factor in determining the level of seriousness of the stealing offence was the applicant's manner of driving the vehicle and the damage caused, or the potential for damage to be caused. His driving, it was claimed, was at the lower end of the scale having regard to the fact that he drove only a matter of a few metres, he did not drive onto a public road, there were no police cars involved in a chase and no pedestrians or other vehicles were forced to move out of his path. We were urged to pay particular attention to the length of imprisonment imposed upon the applicant to ensure that it provided the best opportunity for the rehabilitation of the offender, as well as providing the element of punishment.
As the High Court indicated in Lowndes v The Queen (1999) 73 ALJR 1007, at 1010 [15], the principles according to which an appellate court may interfere with a discretionary judgment of a sentencing Judge are well established. The Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because it would have exercised its discretion in a manner different from the manner in

which the sentencing Judge exercised his or her discretion. This was described as being basic. "The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice".

Giving full weight to these considerations, I have nevertheless reached the conclusion that, having particular regard to the applicant's age and to the fact that this is the first occasion on which he has received a prison sentence, the overall sentence for the offences is too high, and reductions should be made in connection with the stealing offence and the breaches of bail undertakings. The other sentences cannot be regarded as being excessive in themselves and should not be interfered with.
While recognising the extent of the damage to the vehicle and the fact that it was only due to his recklessness that he did not succeed in getting out of the carpark and onto public roads where he was likely to have placed people and property at considerable risk, the applicant's offence was not at the higher end of the scale of such offences. Without in any way diminishing the seriousness of this offence, many of these offences involve very considerable risks of serious injury to members of the police service and to the general public. I would reduce the sentence to one of 2 years' imprisonment.
The learned sentencing Judge was right to highlight their seriousness, but, in my opinion, 3 months for the breaches of bail undertakings in this case where the applicant was, shortly after the date on which he was required to attend the Court of Petty Sessions in Armadale, arrested in that court, was more than was necessary and it should be reduced to 1 month in each case, those sentences to be served concurrently but cumulatively upon those sentences which were ordered to be served cumulatively. The end result is therefore an effective head sentence of 2 years and 7 months.
The future of the applicant, based on his past record, gives cause for considerable concern, and it is to be emphasised that it is essentially his youth and the fact that this is his first prison sentence which necessitates the interference of this Court. It must be made quite clear to him that it is highly improbable that any further leniency will be extended to him if he breaches the law again. Unless the applicant can be rehabilitated at this stage, he is likely to be a burden on society for many years.
I would grant the applicant leave to appeal against his sentences and allow the appeal to the extent I have indicated.

PIDGEON J: I agree with the reasons of Kennedy J and with the orders proposed.
WALLWORK J: I agree with the reasons of Kennedy J and to the orders proposed by his Honour.