R v Swain - [1999] WASCA 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- SWAIN [1999] WASCA 22

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 20 APRIL 1999

DELIVERED : 19 MAY 1999

FILE NO/S: CCA 15 of 1999

BETWEEN: THE QUEEN
Appellant
AND
ROBERT WILLIAM BENSON SWAIN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Attempting to pervert the course of justice - Use of a driver's licence in name of another when disqualified for life - Maintaining deception when charged with a driving offence - Sentence of 15 months' imprisonment substituted for suspended sentence

Legislation:

Sentencing Act (1995) WA, s 39, s 76

Result:
Appeal allowed

Representation:

Counsel:

Appellant: Mr R E Cock QC & Ms A L Forrester
Respondent: Mr D McKenna

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Acting Director of Legal Aid

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

R v G P (1997) 18 WAR 196
R v Grein [1989] WAR 178
R v Liddington(1997) 18 WAR 394
R v Tait (1979) 46 FLR 386

Case(s) also cited:

Connell v The Queen, unreported; CCA SCt of WA; Library No 940731; 22 December 1994
Dao v The Queen, unreported; Fct Sct of WA; Library No 990015; 22 January 1999
Peel v The Queen (1971) 125 CLR 447
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999
R v Osenkowski (1982) 30 SASR 212
Tampolini v O'Brien, unreported; SCt of WA; Library No 930282; 16 July 1993
Whittaker v The King (1928) 41 CLR 230
Wood v Samuels (1974) 8 SASR 465

KENNEDY J: I have had the benefit of reading in draft the reasons of Wallwork J. I am in agreement with those reasons and with the orders his Honour proposes.
IPP J: I have read the reasons to be published by Wallwork J. I agree with them and his Honour's conclusions. I have nothing further to add.
WALLWORK J: These are reasons for judgment on a Crown appeal against sentence.
The respondent was disqualified from driving for life in the Geraldton Court of Petty Sessions on 28 June 1990. On 5 January 1999 he was indicted on a charge that between 17 January 1997 and 2 May 1997 at Gosnells he had attempted by using a false name and motor driver's licence to pervert the course of justice when he was prosecuted on a charge of driving an unlicensed vehicle. On the same day he was sentenced in the District Court at Perth to a term of 18 months imprisonment which term of imprisonment was suspended for a period of two years. The Director of Public Prosecutions has appealed against that sentence.
After the respondent had pleaded guilty in the District Court the prosecutor advised the learned Judge that in early 1993 the respondent had obtained possession of a driver's licence which belonged to another person. That person was unaware that the respondent had his licence. On 28 March 1993 the respondent paid the transfer fee on a Ford Falcon stationwagon. He completed and signed the relevant documents in the name of Mr Bunworth who was the holder of the driver's licence he had obtained. Later on 10 August 1993 the respondent had paid another transfer fee on a Falcon utility which he had acquired. Again he completed and signed the relevant documentation in the name of Bunworth. That vehicle was transferred into Mr Bunworth's name. Two years later on 1 October 1995 the respondent had again paid a transfer fee on a Holden sedan. He had again completed and signed the relevant documentation in the name of Bunworth. The vehicle was transferred into that name.
In addition to obtaining the transfers of the three motor vehicles into the name of Bunworth, the respondent had continued to renew Mr Bunworth's driver's licence when it became due. He had also completed a change of address form in that name. On occasions when he had been stopped by police whilst driving he had produced Mr Bunworth's driver's

licence and incurred several infringement notices in that name which he later paid.

With respect to the facts of the offence for which he was indicted in the District Court in 1999, they began on 17 January 1997 when the respondent was stopped by police officers when he was riding a Honda motorcycle. He had produced Bunworth's licence. A summons was issued to him in that name to answer a complaint that he had been in charge of an unlicensed vehicle. When he received the summons the respondent endorsed the summons with a plea of guilty and signed the name D Bunworth. He returned the endorsed plea of guilty to the Armadale Court of Petty Sessions along with a hand-written letter of explanation purporting to be written and signed by Mr Bunworth.
On 2 May 1997 a conviction for being in charge of an unlicensed vehicle was recorded against Mr Bunworth. He was fined $50 with $45 costs. The respondent later paid that fine.
Then on 9 June 1997 the respondent was convicted of failing to give way to a vehicle, driving whilst under suspension and being disorderly by creating a disturbance. The respondent had given his own name and identification when he was apprehended for those offences. It was said that he had known that he had committed a more serious offence than those he had committed when he had given Mr Bunworth's name. He had known that the offences could result in the loss of the licence and that this could have adverse effects on Mr Bunworth. He had therefore given his correct name on that occasion. He had then been fingerprinted.
The respondent was interviewed by police officers on 15 September 1998. He readily admitted his earlier offences. He told the police officers that he had used Mr Bunworth's driving licence and identity so that he could drive to work. Counsel told the Judge that the respondent had not appreciated the seriousness of his actions. He had pleaded guilty by way of the fast track. It was said that he was remorseful. He had continued to drive so that he could continue in his employment. It was said that he had always had a very "hard work ethic". He had been employed whenever he could obtain work as a boilermaker. It was said that it was necessary that he had a driving licence to continue his employment.
It is obvious from the references supplied to the learned sentencing Judge that the respondent was held in high regard by his employers and work mates. He is a hard and diligent worker.
The learned Judge was told that the respondent had lost his licence originally for drink related offences. However, as a result of being in a traffic accident in 1990 in which he was badly injured, he had stopped drinking to excess. He was a functional member of the community. It appeared from the pre-sentence report that he did not need any supervision. Apart from the deceptions in connection with the driving licence it appeared that he had rehabilitated himself.
In reply counsel for the prosecution said that the circumstances surrounding the offence were on the higher end of the scale. The respondent's course of deception had commenced in early 1993. He had maintained it until roughly September 1998 when it was discovered by the police officers that he had been using Mr Bunworth's licence. It was said that such conduct struck at the heart of the justice system and that the offence was very difficult to detect. This case had demonstrated those facts by the conduct continuing over a lengthy period. It was submitted that a custodial sentence was the only disposition which was appropriate.
The learned sentencing Judge said that when the respondent was a young man he had obviously had drinking problems and had accumulated a bad drink driving record. He had been disqualified from holding a motor driver's licence for life in June 1990. After 1993 he had obtained motor driver's licences and motor vehicle licences in Mr Bunworth's name. His Honour said that it seemed that since 1990 and apart from the deceptions involved in connection with the motor driver's licence, he had essentially kept out of trouble. He had told the police officers that the deception had been prompted by the fact that he had had difficulty in going to work without a motor driver's licence. It seemed that he was a law-abiding, hard-working person, apart from the driving licence matters. There were no other offences outstanding.
His Honour said that he should mark the seriousness of the offence by imposing a custodial order "but to give you the benefit of the other changes in your life, I suspend the custodial order for a period so that you can keep out of trouble and be a useful member of the community". He said that the respondent was too old to need community supervision and did not seem to be able to pay a fine. He sentenced the respondent to a term of 18 months imprisonment and ordered that the term of imprisonment be suspended for a period of two years whilst the respondent was of good behaviour.
At the hearing of this appeal counsel for the appellant submitted that the suspension of a term of imprisonment for an offence of this type did not properly reflect the deterrence which the community expected. It was said that between 17 January 1997 and 2 May 1997 the respondent had sought to obtain a conviction in a false name to avoid being prosecuted for an offence of being in charge of an unlicensed motorcycle. This was a particularly difficult offence to detect and went to the very root of the administration of justice. This had been an offence committed in the full knowledge of what was being done and was not an offence committed on the spur of the moment. It had been committed against a background where the respondent had transferred three vehicles into his own name under Mr Bunworth's name and had renewed Mr Bunworth's driver's licence in his own name on a number of occasions. It was said that the relevant offence was analogous to an offence such as perjury where imprisonment was needed as a real deterrent. It was submitted that the learned Judge had failed to properly reflect that aspect when suspending the sentence. It was submitted for the Crown that the offence was such a serious offence that despite the respondent's personal circumstances the term of imprisonment should not have been suspended.
In R v Grein [1989] WAR 178 at 179‑180 Malcolm CJ stated that the principles applicable to an appeal by the Crown against sentence under s688(2)(d) of the Criminal Code were those which had been stated by Brennan, Dean, Gallop JJ in R v Tait (1979) 46 FLR 386 at 387‑388. In that decision their Honours' said:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself maybe so excessive or inadequate as to manifest such error … Although an error affecting the sentence must appear before the appellate court will interfere in an appeal either by the Crown or by a defendant, a Crown appeal raises consideration which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time honoured concepts of criminal administration': per Barwick CJ, Peel v The Queen (1971) 125 CLR 447at 452. A Crown appeal puts in jeopardy 'the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal:' per Isaacs J, Whittaker v The King (1928) 41 CLR 230 at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court".
It was submitted for the appellant in this case that when deciding whether to suspend a term of imprisonment a number of factors need to be considered in addition to the prospect of the offender's rehabilitation. Those factors include the perceived seriousness and intrinsic character of the particular offence; whether there is any element of persistence; personal and general deterrence and the need for the sentence to demonstrate the condemnation of the community for the offence. The authorities relied on for those propositions were: R v G P (1997) 18 WAR 196 at 220 and 234 and R v Liddington(1997) 18 WAR 394 at 401‑404 and 406. It was submitted that offences of conspiring to pervert the course of justice and of attempting to pervert the course of justice were offences for which general deterrence was a primary consideration. That the seriousness of an offence may be too great to allow the suspension of a sentence and may outweigh all other factors so as to make a suspended sentence inappropriate. That this offence had been extremely serious because the deception had been maintained for some time. The respondent had also used his friend's name without his knowledge.
In my view in this case the learned Judge erred in suspending the sentence. The offence was a very serious one. The seriousness of the offence arises from the fact that life suspensions for driving are imposed when the law recognises that it is too dangerous to the public to allow the relevant drivers to drive motor vehicles on a public road. Serious questions of public safety are involved in these decisions. Such suspensions must be enforced in the public interest. In this case the respondent did not only drive once. He continued to drive and to commit new offences. He then tried to cover it up by misleading the justice system.
Although the respondent is not to be punished for what he did before 17 January 1997 or after 2 May 1997, his offence of attempting to pervert the course of justice between those days was committed after he had been using someone else's driving licence for about four years whilst he had been disqualified from driving for life. That is a relevant factor.
In all the circumstances and having in mind that it is a Crown appeal, and the additional consideration that the respondent has been serving a suspended sentence since 5 January 1999, I would allow the appeal, set aside the sentence and sentence the respondent to a term of 15 months' of imprisonment, to date from the delivering of the decision in the appeal. I would order that the respondent is to be eligible for parole.