Sheiner v Roberts - [2009] WASC 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHEINER -v- ROBERTS [2009] WASC 281

CORAM: McKECHNIE J

HEARD: 8 SEPTEMBER 2009

DELIVERED : 8 SEPTEMBER 2009

FILE NO/S: SJA 1079 of 2009

BETWEEN: RACHEL JANE SHEINER
Appellant
AND
DANNY ROBERTS
PAUL ANTHONY BARTLAM
SHARNI MAREE LAWLER
STEVEN PAUL TURNER
PAUL MARTIN SLATTERY
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :FR 16423 of 2008, PE 63263 of 2008, FR 16497 of 2008, MI 3327 of 2009, PE 25278 of 2009

Catchwords:

Road traffic - Driving under suspension - Term of immediate imprisonment - Range of sentences customarily imposed - Table of sentences

Legislation:

Nil

Result:

Appeal allowed
Total sentence reduced to 8 months

Category: D

Representation:

Counsel:

Appellant: Mr A J Robson
Respondents : Ms M N Ashford

Solicitors:

Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia

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

Abdullah v Mills [2008] WASC 128
Anderson v Heath [2005] WASC 253
Anderson v Little [2009] WASC 143
Anderson v Stilwell [2006] WASC 257
Austin v Grapes [2004] WASCA 102
Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206
Bell v Wesley [2007] WASC 264; (2007) MVR 134
Calway v Wiebe (unreported, WASC, Library No 990001, Miller J, 13 January 1999)
Challis v Davison [2008] WASC 198
Chinnery v Hansen [2001] WASCA 349; (2001) 125 A Crim R 426
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 202 CLR 321
Dragic v Burrows [2000] WASCA 385
Fennell v Somerville [2009] WASC 214
Findlay v Western Australia [2007] WASC 61
Griekspoor v Scott [2000] WASCA 419
Humble v State Solicitor for Western Australia [2009] WASC 99
Kearney v Rinaudo [2007] WASC 104
Logan v Kuser [2008] WASC 65
Marshall v Spent [2000] WASCA 114; (2000) 31 MVR 151
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
O’Brien v Ritchie (unreported, WASC, Library No 990123, McKechnie J, 17 March 1999)
Rossiter v Francisty [2005] WASC 270
Sheppard v Blakey [2001] WASCA 309
Smith v Hope [2001] WASCA 287; (2001) 34 MVR 381
Stewart v Waghorn [1999] WASCA 150; (1999) 29 MVR 541
Williams v Franzinelli [2001] WASCA 241
Zammit v Illich [2003] WASCA 88

McKECHNIE J: In the Magistrates Court at Perth, the appellant pleaded guilty to a multitude of charges, including five charges of driving under suspension. Those charges came after 10 previous convictions for driving under suspension. The Magistrate sentenced the appellant to terms of 6 months' immediate imprisonment for each offence. He ordered that three sentences were to be served cumulatively and two concurrently to make a total sentence of 18 months with parole eligibility.
The appellant appeals against those sentences.

Ground 1

The Learned Magistrate erred in law by failing to give proper consideration to suspending the sentence of imprisonment.

In the course of the plea in mitigation, counsel submitted that the appellant had not previously been placed on a suspended imprisonment order and submitted that a suspended term would be appropriate because, since January 2009, the appellant had shown the court she had changed her life and can stop offending.
He submitted that with the threat of a custodial sentence hanging over her head she could continue with the gains and she knows that if she drives again then she has run out of chances completely. The Magistrate responded:
She knew that when she drove for the first time on 14/4/08 because she had eight previous convictions. They might not have been said anywhere that she's on a suspended sentence, but she knew that if she drove again she was in big trouble. (ts 11)
Almost immediately after that submission and response the Magistrate began his sentence. After recounting the facts he said:
The record reveals that she has got eight previous charges for driving under suspension. I have heard from s (indistinct) today about her heroin problem, how she ran into the wrong people, how her son was removed from her, and how her partner died.
As a result of all of those situations, she stopped caring, I'm told. She didn't care about what she was doing. She was not thinking about the consequences of what she was doing. In about December last year she began to realise the seriousness of the consequences of her behaviour. She undertook drug counselling and she is now undergoing treatment. Well, there are consequences of her behaviour, and today is the day that those consequences come to fruition. (ts 12)
He then said:
I notice on the records of these complaints that there were several occasions when Ms Sheiner was remanded for sentence but didn't appear, and she knew - it's perfectly clear why she didn't appear. She didn't appear because she knew what was going to happen. So I have taken into account all that has been said, but that fact that there are eight previous convictions for driving under suspension, or on eight previous occasions she drove under suspension. I have now got to deal with another five. The only possible sentence is a prison sentence.
That was probably the situation on 14/4/08 when she drove her vehicle under suspension in Fremantle, because she had eight prior convictions. She would have had to have been very silly not to appreciate that when you come to court for the ninth time of driving under suspension, that you are not going to go to gaol. She was aware of that and that's why on occasions she didn't turn up for sentence.
Further on the Magistrate said:
She may not have got gaol for the first time under the circumstances outlined but there are now five offences and the only penalty is a prison sentence.
The appellant submits that the Magistrate erred in failing to revisit all the sentencing factors in determining whether or not to suspend the period of imprisonment, after deciding that imprisonment was appropriate. This is said to be the rule in Dinsdale v The Queen (2000) 202 CLR 321. It is clear that the Magistrate considered and rejected the option of suspending the sentences. The plea in mitigation is part of the sentencing process and he had responded to the submissions.
Dinsdale contemplates, as it were, a two‑step process. Once imprisonment is decided, a court must also consider whether it should be suspended. It does not really matter in which order one does it so long as a sentencing officer plainly considers whether the suspension would be appropriate. There is no formula as to how this is done.
In the present case I consider the decision not to suspend the sentence is plainly correct. Driving a motor vehicle as an adult is not a right but is a privilege that is obtained and kept on license for good behaviour.
On 23 June 2005, the appellant's licence was suspended for 3 months due to an accumulation of demerit points. Two days later she committed an offence of driving while under that suspension which was dealt with on 31 October 2005 and her licence was disqualified for 9 months cumulative, fine $1,000. On 11 February 2008 the appellant was again driving under demerit point suspension. She was dealt with on 31 March 2008 and her licence was disqualified for 9 months cumulative, fine $1,000. On 24 March 2008 she was again found driving while under the same demerit point suspension and was dealt with on 15 April 2008 and her licence suspended for 9 months cumulative, fine $1,000.
She drove also on 9 February and 20 March 2008 while under demerit point suspension, being dealt with on 15 and 17 April 2008. Her licence was suspended for 9 months cumulative, fines $2,000. On 8 May, 28 February and 17 March 2008 she was driving under demerit point suspension and was dealt with on 27 and 28 May 2008 with further disqualification and fines. In May and June 2008 she was convicted of possession of cannabis and possession of heroin.
On 3 July 2008 she was charged with driving under fines suspension and dealt with on 1 August 2008. She was also dealt with for having an unlicensed vehicle. On 6 November 2008 she was again found driving while under suspension and dealt with on 17 December 2008. At that time she was also dealt with for offences which had occurred on 6 November 2008 when she was driving under suspension and driving a vehicle without lights illuminated. On 21 February 2009 she was found in possession of cannabis and dealt with on 27 March 2009.
This was the background when she came for sentencing on 18 June 2009. The offences of driving while under suspension which were dealt with on that day occurred on 14 April 2008, 5 June 2008, 17 July 2008, 5 September 2008, and 28 January 2009.
Although counsel submitted that the appellant had made a number of positive changes in her life, which appears correct, including living with her parents and son, selling her car, working part time, applying for houses and that these changes had occurred in the previous six months, it should be noted that on 18 June 2009 she was also dealt with of possession of cannabis on 13 January 2009 and on 27 March 2009, and possession of methylamphetamine on 27 March 2009.
Continued offending by driving under suspension displays a serious disrespect for lawful authority and a disregard for the privilege of driving. In such circumstances the principle of deterrence, general and in particular personal, assume a greater prominence than in some other offences and issues of character and hardship assume a lesser prominence.
This is why it is an unusual case that repeated offences of driving under suspension will attract anything other than a sentence of imprisonment to be immediately served. This is not and should not be seen as a statement of principle but as an observation of sentencing patterns.
By consent the appellant also tendered two letters. They detail the effect of the appellant's imprisonment on her son. He is in the care of the appellant's parents and certainly is displaying behaviour which would indicate that he would be well served to be reunited with his mother.
Some weight must be given to this but weight of a limited kind. It is the sad fact that criminal behaviour often victimises many people, including the close families of the offender. I note that the appellant was having supervised access which was working very well but she is not presently the main carer of the child.
The factors in the appellant's favour, which I have outlined including that, do not persuade me either that the magistrate made an error or that on appeal a different view should be taken having regard to the new information. Even if the magistrate made the errors complained of and failed to undertake a two‑step sentencing process, I would still not intervene and impose suspended sentences because the principles of general and personal deterrence can only be achieved in this case by a sentence of immediate imprisonment.

Grounds 2 and 3

2.The Learned Magistrate erred in law by failing to adequately take into account the totality principle when imposing a total sentence of 18 months' imprisonment.
3.The Learned Magistrate erred in law in imposing a total sentence for the offences which was manifestly excessive considering sentencing standards for the offence of driving under disqualification, the circumstances of the offences, the offender's pleas of guilty and the personal circumstances of the offender.

These grounds can be dealt with together. It may be immediately accepted that the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety having regard to the circumstances of the case, including those referable to the offender personally: Moody v French [2008] WASCA 67; (2008) 36 WAR 393 at 65.
Mr Robson, counsel for the appellant, has prepared a very helpful schedule of cases which sets out sentencing patterns. I acknowledge his work and this schedule is appended to this judgment for assistance.
In the present case, the offences were more or less continuous over the period. There is no complaint about the length of the individual sentences. They are plainly within the range of a sound sentencing discretion. The only question is accumulation of them. I have taken into account the range of sentences disclosed in the schedule.
It is difficult to precisely compare sentencing outcomes because of the variables, particularly in relation to the personal circumstances of the offender. However, as a broad rule, the schedule discloses that it is unusual for sentences for the number of offences committed by the appellant to exceed 12 months. It must always be borne in mind that a sentence should be no longer than is necessary to achieve the goals of sentencing.
Having regard to the personal circumstances of the appellant, the changes that do appear, albeit slowly, to be taking place, the fact that she has not previously been sentenced to a term of immediate imprisonment and the range of sentences imposed as disclosed in the schedule, I consider that the sentence of 18 months exceeds an appropriate sentence by such amount as to demonstrate error. It is longer than is necessary to achieve the aims of general and personal deterrence, rehabilitation and punishment.
I therefore will resentence the appellant. I would not interfere with the terms of 6 months' imprisonment on each count to be served immediately. However, I would restructure the sentence to make four sentences of 6 months to be served concurrently (complaints FR 16423/08, PE 63263/08, FR 16497/08 and PE 25278/09) and the sentence of 6 months on MI 3327/09 to be served partly concurrently to commence 2 months after the commencement of the service of the other sentences which is 18 June 2009. This makes a total sentence of 8 months. The appeal is allowed and the sentences varied accordingly.

Case	Offences	Prior Record	Other Details	Sentence
*Fennell v Somerville* [2009] WASC 214	7 x DUS 1 x 0.08 2 x 0.05 and others including 2 assaults and a burglary	1 x DUS, 7 x no MDL	Mental health issues.	18 month aggregate sentence reduced to 12 months on appeal
*Humble v State Solicitor for Western Australia* [2009] WASC 99	1 x DUS 1 x SMV 1 x damage	6 x DUS	Bipolar disorder. Breached CBO for DUS offences.	12 months for DUS, 6 months concurrent for SMV and 3 months concurrent for damage. Sentence for DUS reduced on appeal to 8 months.
*Anderson v Little [2009]* WASC 143	1 x DUS 1 x DUI	3 x DUS 3 x DUI	For two most recent DUS convictions, periods of imp had been imposed – 7 months and 9 months. Other convictions more than 20 years old.	12 months total on each offence concurrent reduced on appeal to a total sentence of 8 months – each offence was reduced to 7 months but Appellant ordered to serve 1 month for DUS before starting the 7 months for DUI.
14 January 2009: Repeal of transitional provisions (Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA).

Moody v French [2008] WASCA 67

2 x DUS

1 x 0.08

1 x DUI

9 x DUS

Offences committed while offender on a 9-month suspended sentence for creating a false belief.

21 months total sentence with no parole

(2 x 9 months for DUS (concurrent) + 12 months for DUI (cumulative) + 9 months for triggered suspended sentence (concurrent) reduced on appeal to 12 months – with parole

Abdullah v Mills [2008] WASC 128

3 x DUS

3 x DUI

1 x damage

1 x possession of article

2 x DUS

1 x excess 0.08

4 x damage

2 x possess prohibited weapon

27 months total

(9 months for DUI + 6 months for DUS (concurrent) + 6 months for DUI (cumulative) + 9 months for DUS (concurrent) + 3 months for unlawful damage (concurrent) + 3 months for possession (concurrent) + 12 months for DUI (cumulative) + 9 months for DUS (concurrent)) reduced on appeal to 15 months (2^nd DUS was reduced to 7 months and 3^rd DUS was reduced to 8 months. Terms imposed for DUS did not effect overall sentence, as these terms were concurrent)

Challis v Davison [2008] WASC 198

4 x DUS

and others

7 x DUS (fines) and

2 x DUS (legally disentitled)

A suspended sentence had been imposed in the past but the Appellant had not previously been sentenced to immediate imprisonment.

12 months total

(4 x 3 month sentence one concurrent, the rest cumulative on each other) reduced on appeal to 8 months

Logan v Kuser [2008] WASC 65

1 x DUI

1 x DUS

1 x speeding

2 x DUI

1 x DUS

1 x reckless

14 months total (9 months for DUI, 5 months cumulative for DUS) reduced on appeal to 7 months conditionally suspended (7 months for DUI, 4 months for DUS (concurrent), suspended for 12 months)

McDonald v White [2007] WASCA 213

1 x damage to property

1 x DUS

1 x excess 0.08

1 x reckless driving

1 x failing to stop

5 x 0.08

7 x DUS

2 x DUS (fines)

manslaughter

assault

burglary

15 months total

(9 months for DUS and 6 months cumulative for reckless and 6 months concurrent for damage) reduced on appeal to 10 months (DUS sentence reduced to 5 months)

Bell v Wesley [2007] WASC 264; (2007) MVR 134

4 x DUS

2 x false name

2 x speeding

2 x possession drug

1x aggravated assault

1 x breach of bail

10 x DUS

Was on a 9 month suspended sentence imposed for an earlier DUS conviction.

36 months total

(9 months for triggered suspended sentence and 6 months for DUS cumulative and 10 months for DUS cumulative and 11 months for DUS cumulative and 9 months for DUS concurrent and 2 months for breach of bail concurrent) upheld on appeal.

Kearney v Rinaudo [2007] WASC 104

2 x DUS

6 x DUS

2 x DUI

1 x 0.05

1 x refuse breath test

Was on a pre‑sentence order for the first DUS when he committed the second.

24 months total (2 x 12 months cumulative) reduced on appeal to 16 months (each term reduced to 8 months cumulative with parole)

Findlay v Western Australia [2007] WASC 61

2 x DUS

2 x DUI

11 x DUS

11 x DUI or excess 0.08

Penalties for prior convictions had included imprisonment – 2002, 2004.

Licence suspended for life in 2004.

On bail for first offence when charged with second offence.

24 months total, no parole (12 months for DUI, 12 months for no MDL concurrent, 12 months for DUI cumulative, 12 months for DUS concurrent) -sole ground of appeal – ordered not eligible for parole. Appeal dismissed.

*Anderson v Stilwell* [2006] WASC 257	3 x DUS	11 x DUS	Penalties for prior convictions had included imprisonment.	24 months total (3 x 8 months cumulative) reduced on appeal to 20 months (by – reducing one term to 4 months)
*Rossiter v Francisty* [2005] WASC 270	3 x DUS 3 x unlicensed vehicle 1 x exceed speed limit 1 x false plates 1 x false details to police	7 x DUS Unlicensed vehicle False plates 0.05	8 month suspended sentence was given on 7^th DUS conviction. The new convictions triggered this suspended sentence. Offences dealt with on two separate days	14 months total (8 months for triggered suspended sentence and 8 months for 10^th concurrent and 6 months 1 day x 2 concurrent with each other but cumulative on earlier) reduced on appeal to 8 months (6 month sentences made concurrent)
*Anderson v Heath* [2005] WASC 253	3 x DUS 2 x false name 1 x possession amphetamines 1 x unlicensed vehicle	7 x DUS	Previously sentenced to term of immediate imprisonment in 1994, a suspended term in 2002, and an immediate term in 2003.	16 months total (8 months, 8 months concurrent, 8 months cumulative. Fines for other offences) reduced on appeal to 7 months total (2 x 7 months, 1 x 5 months, all concurrent)
*Mason v Morrison* [2004] WASCA 181	1 x DUS 1 x DUI	11 x no MDL 9 x DUI	Steps taken to address alcohol problem. Prosecution appeal.	Suspended terms of imprisonment set aside on appeal and 9 months imprisonment total (9 months concurrent for each offence).

Austin v Grapes [2004] WASCA 102

2 x DUS

2 x stealing

3 x stealing motor vehicles

7 x DUS

Early plea of guilty.

Domestic violence and substance abuse problems.

Record – 79 convictions for various minor offences (including 7 x DUS).

2 year total sentence reduced on appeal to 14 months with parole

14 May 2004: Sentencing Act 1995 amended to provide that a court must not sentence an offender to a term of less than 6 months imprisonment unless the aggregate of the term with another term would be more than 6 months, the offender is already serving another term, or the term is imposed under s79 of the Prisons Act 1981.

31 August 2003: Enactment of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003 requiring the sentencing court to impose a sentence that was two thirds of the sentence that they 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) – “transitional provisions”.

*Zammit v Illich* [2003] WASCA 88	1 x DUS	4 x DUS (suspended sentence imposed for 4^th, triggered and sentence imposed for 4^th and 5^th).	Early plea of guilty. Offence committed 2 months after suspended sentence imposed for DUS. Steps taken to address offending behaviour between commission of offence and sentence.	3 months and 1 day (for each conviction, concurrent) upheld on appeal.
*Chinnery v Hansen* [2001] WASCA 349; (2001) 125 A Crim R 426	1 x DUS	5 x DUS	Major depressive disorder.	4 months suspended sentence
*Sheppard v Blakey* [2001] WASCA 309	1 x DUI 1 x 0.08 2 x DUS 2 x breach of bail	4 x DUI 3 x excess 0.08 1 x DUS 1 x DUS (fines) 3 x breach of bail	Two sets of offences “closely connected in nature and circumstance” but separate in time by 1 week.	21 months total upheld on appeal (6 months for DUI, 6 months for DUS cumulative, 3 months for breach of bail concurrent, 9 months for DUS cumulative, 3 months for breach of bail).
*Smith v Hope* [2001] WASCA 287; (2001) 34 MVR 381	1 x DUS	2 x DUS	Last DUS conviction 4 years earlier.	6 months immediate imprisonment varied on appeal to 6 month suspended sentence.

*Cross v Cook* [2001] WASCA 242	1 x DUS 0.08	3 x DUS	4 months immediate imprisonment varied on appeal to 4 months suspended sentence. (1 month of imprisonment had been served prior to appeal being allowed.)
*Williams v Franzinelli* [2001] WASCA 241	1 x DUS 1 x false name	4 x DUS 1 x DUI	9 month sentence varied on appeal to 6 months
*Griekspoor v Scott* [2000] WASCA 419	1 x DUS 0.08 Refusing to stop Assume false identity Speeding	3 x DUS 2 x DUI	Offences committed whilst on parole.	6 months imprisonment varied on appeal to $4,000 fine (4 months suspended sentence considered appropriate but not available as appellant on parole)
*Dragic v Burrows* [2000] WASCA 385	1 x DUS 1 x possession cannabis	2 x DUS	“Reasonably extensive record” of criminal and traffic convictions.	14 months imprisonment varied on appeal to 4 months (allowing for time spent in custody).
*Bacich v Illich* [2000] WASCA 133; (2000) 31 MVR 206	2 x DUS	3 x DUS	Had earlier been sentenced for 6^th and 7^th convictions to 4 month suspended sentence)	5 months (head sentence and 4 months to be served concurrently) upheld on appeal.
*Marshall v Spent* [2000] WASCA 114; (2000) 31 MVR 151	1 x DUS 1 x DUI	1 x DUS 1 x DUI	4 months (for each, concurrent) – appeal dismissed.

Stewart v Waghorn [1999] WASCA 150; (1999) 29 MVR 541

1 x DUS

1 x DUI

4 x DUS

1 x DUI

ADHD diagnosis.

15 month sentence of imprisonment varied on appeal to 6 months suspended sentence

O’Brien v Ritchie (unreported, WASC, Library No 990123, McKechnie J, 17 March 1999)

1 x DUS

3 x DUS

4 months immediate imprisonment varied on appeal to 4 months suspended sentence (1 month of imprisonment had been served prior to appeal being allowed).

Calway v Wiebe (unreported, WASC, Library No 990001, Miller J, 13 January 1999)

1 x DUS

1 x excess 0.08

2 x DUS

1 x excess 0.08

1 x excess 0.05

4 months imprisonment upheld on appeal.