Ripper v Blakey - [2002] WASCA 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RIPPER -v- BLAKEY & ANOR [2002] WASCA 153

CORAM: PULLIN J

HEARD: 5 APRIL 2002

DELIVERED : 5 APRIL 2002

FILE NO/S: SJA 1038 of 2002

MATTER :Justices Act 1902

BETWEEN: ROBERT HARRY RIPPER
Applicant
AND
BRIDGET ANNE BLAKEY
DAMIEN BRETT THOMPSON
Respondents

Catchwords:

Criminal law - Sentencing - Appeal - Application for leave

Legislation:

Sentencing Act, s 80 and s 81

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R E Lindsay
Respondents : Mr B D Meertens

Solicitors:

Applicant: T R Stephenson
Respondents : State Director of Public Prosecutions

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

Hall v The Queen (1999) 21 WAR 364
R v Marston (1993) 60 SASR 320

Case(s) also cited:

Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Little v Connop, unreported; SCt of WA; Library No 950547; 15 September 1995
R v Deakin, unreported; CCA SCt of WA; Library No 8064; 14 February 1990
R v King [2000] WASCA 130
R v Wilson, unreported; CCA SCt of WA; Library No 7325; 20 October 1988

PULLIN J: This is an application for leave to appeal under the Justices Act against the decision of Mr McIntyre SM, when he sentenced the applicant in relation to an offence of driving whilst under suspension and then dealt with some other offences which had been committed on 13 November 2000, and in respect of which suspended sentences had been imposed.
The applicant is 43 years old. He has a record which includes eight offences of driving without a licence, three of them whilst under suspension. On 12 December 2000, the applicant was convicted of:
(a)Driving under suspension. He was given a 6-month sentence for that offence.
(b)Possession of cannabis with intent. A 6-month sentence was imposed.
(c)Possession of amphetamines. A 1-month sentence was imposed.
(d)Cultivating cannabis. A 6-month sentence was imposed.
(e)An unlicensed firearm offence. He was fined $200.
In relation to the sentence concerning possession of cannabis with intent, the sentence was made cumulative on the driving under suspension charge. So that, in total, there was a 12-month period of imprisonment, but this term of imprisonment was suspended for a period of 2 years.
Then late in 2001, the applicant again drove the vehicle whilst under suspension. He was convicted on his own plea on 20 December 2001, and he came before the Magistrate as a result of s 80 of the Sentencing Act.
Section 80(1) of the Sentencing Act provides that:
"If satisfied that a person has been convicted … of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment."
Section 80(3) of the Sentencing Act then reads:
"A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed."
The way s 80 works is that the list of options which are given to the Court in subsection (1) do not become available until the Court decides that it would be unjust to make an order under subsection (1)(a). The effect of s 80(3) is to require the Court to make an order in terms of s 81(1)(a) unless it reaches the conclusion, in all of the circumstances that have arisen or become known since the suspended imprisonment was imposed, that it was unjust to order the person to serve the term or terms of imprisonment that were suspended.
I refer to Hall v The Queen (1999) 21 WAR 364, and in particular I refer to the judgment of Murray J at pars 33 to 35. In par 35, reference is made to R v Marston (1993) 60 SASR 320 at 322, where it was said:
"It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders. Nevertheless, ... as, indeed, the section recognises, there are circumstances in which it is proper to refrain from revoking the suspension of the sentence."
The reference to the principle is a reference to something else said in the Marston case, which reads as follows:
"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law‑abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non‑law‑abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."
One of the factors which is mentioned in Hall's case as being relevant is whether or not the new offence which is committed is trivial or whether it was committed late in the suspension period or did not itself warrant punishment by imprisonment.
In this case, I have mentioned that the applicant has a bad record in relation to driving offences and flouts the law even when he knows that he has his licence suspended, so the offence that he came back on in December 2001 was, in my view, an offence which could not be regarded as trivial, and it was not late in the period of suspension but about halfway through.
It seems evident from the Magistrate's reasons for decision that he had in mind s 80 of the Sentencing Act. He uses the language of that section, although he does not refer directly to the section number. He refers to whether or not it was "unjust" to require the applicant to face the consequences of the sentencing process. He also referred to, and took into account, the circumstances which were put before him.
The complaint in this appeal is in relation to the Magistrate's conclusion that it was not unjust to require the applicant to serve the suspended sentence. It is said that he did not take into account three factors: first that he had only committed a driving offence in late 2001; secondly, that he was looking after his children and an elderly person called Mr Forbes, and had a responsibility to do that; and thirdly, that there had been no further offending involving drugs.
These matters were all referred to during the course of the submissions which were made. At p 44 of the application book, which contains the transcript of the hearing on 22 January 2002, it was pointed out to the Magistrate that the applicant was no longer associating with drug-type activities, and it was also said there that he had taken full responsibility for his children.
On p 45 of the application book, submissions were made by counsel about Mr Forbes. The submissions were that he was suffering from cancer and kidney failure; that he was a house‑bound patient in Mr Ripper's house; that Mr Ripper looked after him; and that he was regarded as a member of the family, both by Mr Ripper and the children. Further down the page, counsel said that Mr Forbes will be stuck by himself if Mr Ripper was imprisoned, and his Worship said that he accepted what was said by counsel in that respect. At p 47 of the application book, his Worship, having heard the submissions, said:
"It depends on a consideration of all of the circumstances. I can assure you that I'll take all of the circumstances into account."
At the bottom of p 49, he said:
"In my view, taking into account what's been said, it's not 'unjust' to require you to face the consequences of the sentencing process of the 12th of December."
On p 50, he said:
"I'll acknowledge that on the 20th of December there was no other form of offence. There was no alcohol‑related offence or anything associated with it. The suspended sentence also involves a component for the drug related issues. It was a total of 12 months. Despite what I said, in the circumstances I am prepared to concede that there's no necessity to impose an additional term."
Then further down on p 50, he concluded by saying:
"So in relation to this matter, there's a 4 months' imprisonment concurrent, 12 months cumulative driver's licence suspension imposed. I've taken into account, as I've already indicated, all that's been said on your behalf. But, in my view, if you were not required to serve the suspended sentence, it would just simply undermine the law. So you have to now serve 12 months' imprisonment."
Clearly, the decision that the Magistrate had to make under s 80, and under s 80(3) in particular, was a decision which involved an assessment of all of the circumstances, and just because I might reach a different conclusion does not establish that there is an arguable case. It has to be shown that, in some way, the Magistrate erred in reaching the conclusion that he did.
In my opinion, the Magistrate correctly directed himself as to the law, correctly took into account the provisions of s 80(3), took into account the law as it appears in Hall's case and, in my view, it cannot be said that he reached a conclusion that was in error. As a result, it cannot be shown that there is an arguable case in all of the circumstances which I have outlined. So, pursuant to s 187(1) of the Justices Act, I refuse leave to appeal.