Rossiter v Francisty

[2005] WASC 270

ROSSITER -v- FRANCISTY & ANOR [2005] WASC 270

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 270
Case No:	SJA:1094/2005	Heard:	11 NOVEMBER 2005
Coram:	MCKECHNIE J	Delivered:	11/11/05
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences made concurrent
Category:	D
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Parties:	LESLIE JAMES ROSSITER RENAT FRANCISTY AUBREY FULLMAN
Catchwords:	Road traffic, multiple offences of driving under suspension Table of sentences commonly imposed for driving while suspended Present sentences manifestly excessive
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ROSSITER -v- FRANCISTY & ANOR [2005] WASC 270 CORAM : MCKECHNIE J HEARD : 11 NOVEMBER 2005 DELIVERED : 11 NOVEMBER 2005 FILE NO/S : SJA 1094 of 2005 BETWEEN : LESLIE JAMES ROSSITER

Appellant

AND

RENAT FRANCISTY
First Respondent

AUBREY FULLMAN
Second Respondent

(Page 2)

ON APPEAL FROM:

For File No : SJA 1094 of 2005

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR P HEANEY SM

Date : 11 March 2005

File No : JO 7323 of 2004, PE 15771 of 2005

For File No : SJA 1094 of 2005

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR C ROBERTS SM

Date : 29 March 2005

File No : MI 1941 of 2005, MI 2369 of 2005

Catchwords:

Road traffic, multiple offences of driving under suspension - Table of sentences commonly imposed for driving while suspended - Present sentences manifestly excessive

Legislation:

Nil

Result:

Appeal allowed

Sentences made concurrent

(Page 3)

Category: D

Representation:

Counsel:

Appellant : In person
First Respondent : Mr S M Murphy
Second Respondent : Mr S M Murphy

Solicitors:

Appellant : In person
First Respondent : State Solicitor for the State of Western Australia
Second Respondent : State Solicitor for the State of Western Australia

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

Nil

Case(s) also cited:

Nil


(Page 4)

MCKECHNIE J:

Assistance of the respondent

1 I should first make particular mention of the stance of the respondent who, at relatively short notice, has provided considerable assistance in enabling me to deal with the matter. The respondent does not oppose my hearing the applications together, including the appeal. This is the latest in a series of cases where the State Solicitor, or the DPP, at short notice, has been prepared to assist in the expedition of appropriate cases. This contribution to the administration of justice should be acknowledged.

2 This is an application for bail and also an application for an extension of time and for leave to appeal the series of sentences imposed upon the appellant on successive occasions, the net result being that the appellant was sentenced to a term of imprisonment for 14 months and 1 day.

3 The appellant requires an extension of time which is not opposed. The chronology, which I take substantially from the respondents' outline, is this: the appellant has a very bad driving record but has not, it would appear, committed driving offences from about 1992 until last year. On 17 February 2004 he sustained his sixth conviction for driving without a motor vehicle driver's licence, coupled with driving an unlicensed vehicle, and driving a vehicle with forged or fraudulently altered number plates. He was fined.

4 On 15 July 2004 he committed his seventh driving while under suspension, coupled with excess of 0.05 (JO 7323/04). On 22 September 2004 he was convicted in relation to that offence, coupled with excess of 0.05. He received a fine and an 8 month sentence which was suspended. On 19 December 2004 he committed his eighth driving while under suspension, coupled with driving an unlicensed vehicle (MI 2369/05). On 4 January 2005 he committed his ninth driving while under suspension, exceeding the speed limit and driving an unlicensed vehicle (MI 1941/05). On 4 March 2005 he committed his tenth driving under suspension, coupled with driving a vehicle with forged or fraudulently altered false number plates, driving an unlicensed vehicle and giving false personal details to police (PE 15771/05).

5 He was dealt with in court somewhat in reverse because on 11 March 2005 he was convicted in respect of the tenth driving under suspension offence (PE 15771/05). He received a sentence of 8 months' imprisonment and that conviction also triggered the suspended sentence of

(Page 5)

8 months imposed on 22 September 2004 for the seventh driving while under suspension (JO 7323/04). They were ordered to be served concurrently. On 29 March 2005 he was convicted of the eighth and ninth offences of driving while under suspension, coupled with driving an unlicensed vehicle, and driving without a licence (MI 2369/05 and MI 1941/05). He received two sentences of 6 months and 1 day which were concurrent with each other but cumulative upon the earlier sentences.

6 This Court has on many occasions emphasised the need for strong deterrence for persistent offences of driving while suspended. The reasons for this have been explained in various cases. One of the reasons is that if a person has an accident they are uninsured and that brings about all sorts of problems. More particularly, however, there is a deliberate breaching and defiance of the law in this type of offending that requires punishment.

7 The respondent's counsel has very helpfully gathered together a table of offences which I include as a schedule to this judgment because it will be very useful in future. The appellant had reached the stage (leaving aside to some extent the earlier offences that had occurred a decade ago) where a sentence of imprisonment was not only open but inevitable, especially once he had further offended after being given the opportunity of a suspended sentence.

8 However, that is not the end of the matter. By reference to the schedule and the range of sentences customarily imposed, it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant and it is especially rare for a sentence to be imposed without parole eligibility. I am confident that had one magistrate dealt with all of the offences together then the sentence imposed would have been somewhere in the region of 8 months which, having regard to the adjustments necessary to be made under the Sentencing Act 1995 (WA), would have previously equated to a sentence of 12 months. Such a sentence would have encompassed the criminality of all of the appellant's offending.

9 It was an error for the last two sentences imposed to have been made cumulative upon the sentences of 8 months. I allow the appeal, set aside so much of the order of 29 March 2005 that made those sentences cumulative and in lieu thereof order that those sentences be served concurrently with the sentences of 8 months' imprisonment that were imposed on 11 March 2005.

(Page 6)

10 By my calculations therefore the appellant is now eligible for release because his sentence of 8 months has in fact been served and so it is unnecessary therefore to grant bail because he has served the sentence as I have adjusted it.
(Page 7)

STANDARDS OF SENTENCING CUSTOMARILY OBSERVED WITH RESPECT TO THE OFFENCE OF DRIVING WHILST SUSPENDED

Case	Offence(s)	Antecedents and other details	Sentence of Imprisonment
Mason v Morrison [2004] WASCA 181	1 x Driving whilst suspended 1 x DUI	11 prior driving whilst suspended convictions, 9 prior DUI convictions; pleas of guilty, steps taken to address alcohol problem	9 months (for each offence – concurrent)
Austin v Grapes & Ors [2004] WASCA 102	2 x Driving whilst suspended 2 x Stealing 3 x Stealing Motor vehicle	Early plea of guilty, 79 previous convictions for various minor offences (including 7 convictions for driving whilst suspended); domestic violence, substance abuse problems	6 months (each for driving whilst suspended offence – concurrent with each other, cumulative with the balance of the sentence) 30 month head sentence (incl 6 months): less one third for new sentencing regime, less 28% for early plea of guilty
31 August 2003: Enactment of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003 requiring the sentencing Magistrate/Judge to impose a sentence that was two-thirds of the sentence that the sentencing Magistrate/Judge would have imposed had the old sentencing regime been in operation at the time of sentencing (where the court is not following the practice of the court as established in accordance with the new sentencing regime).

(Page 8)

Zammit v Illich [2003] WASCA 88	1 x Driving whilst suspended (speeding) committed 2 months after suspended sentence imposed in respect of earlier driving whilst suspended conviction	3 prior driving whilst suspended convictions (ie. the suspended sentence was imposed in respect of the 4th offence and the immediate sentences were imposed in respect of the 4th and 5th convictions) Early plea, steps taken to address offending behaviour between commission of offence and sentence	3 months and 1 day (for 4th and 5th convictions – concurrent)
Chinnery v Hansen (2001) 125 A Crim R 426; [2001] WASCA 349	1 x Driving whilst suspended	5 prior driving whilst suspended convictions; Plea of guilty; Major depressive disorder, chronic and severe	4 months (suspended)
Sheppard v Blakey [2001] WASCA 309	1 x DUI 1 x excess 0.08 2 x Driving whilst suspended 2 x Breach of bail (fail to attend court)	Two sets of offences "closely connected in nature and circumstance" but "quite separate in time" (1 week) 4 prior DUI convictions 3 prior excess 0.08 convictions 2 prior convictions for driving whilst suspended (1 on fines suspension) 5 prior convictions for driving a motor vehicle without appropriate licence 3 prior convictions for breach of bail 1 prior conviction for breach of bail undertaking; Pleas of guilty	21 months total (after deducting 6 months for plea of guilty) – no eligibility for parole 1 x DUI: 6 months; 1 x Driving whilst suspended: 6 months cumulative; 1 x Breach of bail: 3 months concurrent; 1 x excess 0.08: $1,200 fine; 1 x Driving whilst suspended: 9 months; 1 x Breach of bail (3 months cumulative).

(Page 9)

Smith v Hope (2001) 34 MVR 381; [2001] WASCA 287	1 x Driving whilst suspended	2 prior driving whilst suspended convictions (last occurring approx 4 years earlier); Plea of guilty at an early stage	6 months (suspended)
Cross v Cook [2001] WASCA 242	1 x Driving whilst suspended 1 x excess 0.08	3 prior driving whilst suspended convictions	4 months (suspended) (1 month of imprisonment had been served prior to the appeal being allowed)
Williams v Franzinelli [2001] WASCA 241	1 x Driving whilst suspended 1 x False name and address	Prior convictions: 4 x Driving whilst suspended 1 x DUI	6 months
Griekspoor v Scott (2000) 23 WAR 530; [2000] WASCA 419	1 x Driving whilst suspended 1 x excess 0.08 1 x refusing to stop 1 x assuming false identity 1 x speeding	Prior convictions included: 3 x Driving whilst suspended 2 x DUI Plea of guilty, Offences committed whilst on parole	Initially 4 months (suspended) considered appropriate but was not open as Appellant on parole. $4,000 fine and Work Development Order imposed in lieu
Dragic v Burrows [2000] WASCA 385	1 x Driving whilst suspended 1 x possession (Cannabis)	“Reasonably extensive record” of criminal and traffic convictions, 2 prior convictions for driving whilst suspended, plea of guilty	4 months (allowing for time already spent in custody)

(Page 10)

Bacich v Illich (2000) 31 MVR 206; [2000] WASCA 133	2 x Driving whilst suspended	3 prior driving whilst suspended convictions (had earlier been sentenced for 6th and 7th convictions to 4 month suspended sentence – not regarded as aggravating but considered as conduct subsequent to relevant offences)	5 months (Head sentence) + 4 months (to be served concurrently)
Marshall v Spent (2000) 111 A Crim R 572; (2000) 31 MVR 151;[2000] WASCA 114	1 x Driving whilst suspended 1 x DUI Both committed less than 2 months following conviction for same offences	Prior convictions: 1 x Driving whilst suspended 1 x DUI Early plea of guilty	4 months (for each – concurrent)
Stewart v Waghorn (1999) 107 A Crim R 288; (1999) 29 MVR 541; [1999] WASCA 150	1 x Driving whilst suspended 1 x DUI	Prior convictions 4 x Driving whilst suspended 1 x DUI ADHD diagnosis	6 months (suspended)
O’Brien v Ritchie (unreported, SCt (WA), Lib No 990123, McKechnie J, 17 March 1999)	1 x Driving whilst suspended	3 prior driving whilst suspended convictions	4 months (suspended) (1 month of maximum security imprisonment had been served prior to the appeal being allowed)
Calway v Wiebe (unreported, SCt (WA), Lib No 990001, Miller J, 13 January 1999)	1 x Driving whilst suspended 1 x Excess 0.08	Prior convictions: 2 x Driving whilst suspended 1 x Excess 0.08 1 x Excess 0.05 Early guilty plea	4 months

(Page 11)

Jennings v Carson & Anor (unreported, SCt (WA), Lib No 980608, Miller J, 21 October 1998)	1 x Driving whilst suspended 1 x Driving whilst suspended 1 x DUI (same occasion)	2 prior convictions for driving whilst suspended	4 months (suspended) 6 months (suspended)
Krakouer v Durka (unreported, SCt (WA); Lib No 980595, 14 October 1998)	1 x Driving whilst suspended 1 x Escape legal custody	4 prior convictions for driving whilst suspended Plea of guilty on date of hearing	4 months
Auburn v Sears (unreported, SCt (WA), Lib No 970508, Scott J, 2 October 1997)	1 x Driving whilst suspended 1 x DUI	19 prior convictions for driving whilst suspended, plea of guilty	12 months, eligible for parole (length of term not challenged on appeal – appeal concerned parole eligibility)
Narrier v Fallows (unreported, SCt (WA), Lib No 970175, 11 April 1997)	1 x Driving whilst suspended 2 x False details to police officer 1 x Breach of bail (failure to attend court)	"long record of previous convictions" 6 prior driving without appropriate MDL convictions	8 months (total – suspended), 3 months’ imprisonment had been served before hearing of appeal
Fernando v Keady (unreported, SCt (WA), Lib No 940135, Murray J, 4 March 1994)	1 x Driving whilst suspended	4 prior convictions for driving whilst suspended; early guilty plea	2 months