Spack v Godfrey

[2009] WASC 262

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SPACK -v- GODFREY [2009] WASC 262

CORAM:   McKECHNIE J

HEARD:   19 AUGUST 2009

DELIVERED          :   11 SEPTEMBER 2009

FILE NO/S:   SJA 1065 of 2009

BETWEEN:   JAY AARON SPACK

Appellant

AND

ROGER MARTIN GODFREY
First Respondent

TERRENCE RUSSELL KUSER
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B A LANE

File No  :PE 10844 of 2007, PE 18488 of 2008

Catchwords:

Road traffic - Driving while disqualified - Previous convictions - Whether sentence of suspended imprisonment appropriate - Failure to take account of plea of guilty - Resentence

Legislation:

Nil

Result:

Appeal allowed
Intensive supervision order imposed

Category:    B

Representation:

Counsel:

Appellant:     Ms B J Lonsdale

First Respondent           :     Mr D E Leigh

Second Respondent      :     Mr D E Leigh

Solicitors:

Appellant:     Mark Andrews Legal Pty Ltd

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

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

McDonald v White [2007] WASCA 213

1. McKECHNIE J:  On 25 March 2008 the appellant pleaded guilty to two counts of driving while under suspension, and two other matters for which he received fines.  In respect of the charges of driving under suspension he was sentenced to 12 months' imprisonment on each count suspended for 2 years to run concurrently.

2. An application for leave to appeal was not lodged until 26 June 2009 and so the appellant seeks an extension of time within which to appeal and leave to appeal the sentence of 12 months' imprisonment on grounds which were amended without objection at the hearing.

Extension of time within with to appeal

1. The original affidavit seeking an extension of time was plainly inadequate in its explanation and if that had been the only evidence I would have had no hesitation in refusing an extension of time.  However, following the receipt of the respondent's submissions on sentence the appellant has filed two further affidavits, one sworn by him and one by his solicitor which go some way to, though not entirely, explaining the delay.

2. The appellant was subsequently charged with a further offence of driving while disqualified and giving a false name to police, those offences allegedly occurring on 26 June 2008.  The record of court proceedings show a series of adjournments for those matters stretching until 21 August 2009.  The appellant's current solicitors are not responsible for those adjournments until just before the notice of appeal was filed by them.  I have not heard from the appellant's former solicitors so I will say nothing further about the delay or the reasons for it.

3. I note also that on 25 May 2009 the appellant was charged with possession of a prohibited drug and possession of a pipe for use in connection with the smoking of a prohibited drug.  There were detectible traces of a prohibited drug on the pipe.

4. I will grant an extension of time but only because I am satisfied that there will be a miscarriage of justice if the sentence is left standing.  I am not otherwise satisfied as to the reasons for the delay.

5. Without objection I granted leave to amend the grounds of appeal.

Ground 1

The Learned Magistrate erred by failing to consider other sentencing dispositions in circumstances where an alternative disposition was clearly open, given the Appellant's circumstances and antecedents.

1. The offences which were dealt with by the magistrate on 25 March 2008 were not the first offences.  The appellant's licence had been suspended in the Magistrates Court on 13 June 2007 for a period of 9 months. 

2. The penalties for both these offences include imprisonment if found guilty.  They occurred 10 months after the appellant had committed two prior offences of driving whilst under suspension.  The appellant's criminal record shows repeated traffic violations often accompanied by providing false information to the police.

3. The magistrate had been provided with a letter by the appellant which she read and said:

   I have some understanding now.

4. When the matter was called back the facts were read.  They disclosed that on 27 August 2007, a little over two months after his licence had been suspended, the appellant was stopped for speeding and gave a false name.

5. The second offence occurred on 27 November 2007.

6. The Magistrate said:

   I don't need to know any further except that you were driving and you should not have been driving, so the only options that I have got today are imprisonment or a suspended term of imprisonment.  They are the only two options I have got really in this dealing.  You must know that, so it's coming to the time and I have read your letter. (ts 8)

7. In my opinion the magistrate was doing no more than using a shorthand expression to indicate that the gravity and seriousness of the offending placed the appellant in the category of persons for whom imprisonment, either suspended or unsuspended, would be appropriate.

8. While the appellant certainly has mental health issues and general deterrence may play a somewhat lesser part in respect of such people, there was a clear need for personal deterrence for a person who repeatedly drove while legally disentitled.  A sentence of immediate imprisonment may not have been in error: McDonald v White [2007] WASCA 213 at [30]. However, the magistrate did not impose immediate imprisonment but suspended that term.

9. In the course of submissions counsel for the appellant several times referred to the conviction as 'only' the third conviction for driving while disqualified.  A sentence of suspended imprisonment for a third conviction is unusual.  However, any view that a sentence of imprisonment after 'only three' convictions is always inappropriate and would be a dangerous view to hold.

10. Having regard to the comparatively short time after suspension within which these offences occurred, and on the material that was in front of the magistrate, I am not persuaded that the magistrate erred in selecting a suspended term of imprisonment as an appropriate sentence.  Leave to appeal on ground 1 is granted but the appeal is dismissed.

Ground 2 and ground 3

2.The Learned Magistrate erred in failing to accord any weight to the appellant's plea of guilty.

3.In imposing sentences of 12 months imprisonment, suspended for 2 years, the Learned Magistrate imposed sentences which were outside the range of sentences imposed in other like cases.

1. The prosecution concedes ground 2.  This concession is rightly made.  The sentence of 12 months' imprisonment, having regard to the transitional provisions then applying, was effectively the maximum sentence that could be imposed and therefore takes no account of the mitigatory effect of the plea of guilty.

2. That being so, ground 3 effectively falls away as it becomes necessary for me to resentence the appellant.

3. I have been provided with more material to assist the sentencing process than that available to the magistrate.  In particular, I have a psychiatric report detailing the severe post‑traumatic stress disorder which befell the appellant following his survival of a bad air crash in 2000.  Although he survived the air crash, it seems to have been the precursor of disasters in his life culminating in a conviction for possession of methylamphetamine in 2008.  I also have regard to the fact that in respect of that sentence an intensive supervision order was imposed on him.

4. Following the hearing I reserved my decision so that I could obtain a pre‑sentence report, in fact the pre‑sentence report that was before the District Court.  Taking into account the plea of guilty and the other matters of mitigation, the length of a term of imprisonment that I would impose before suspending it would be less than 6 months.  Such a term must not be imposed: Sentencing Act 1995 (WA) s 86. Moreover, a sentence of imprisonment now, even a suspended sentence, may interfere with the ISO imposed by the District Court.

5. Counsel for the appellant submitted that a CBO might best fit the circumstances.  I am unpersuaded.  The appellant's actions were serious and there is need for an order of sufficient restriction to impress on him that his continued wilful defiance of the law is regarded gravely.  However, the factors that persuaded the District Court to impose an ISO also persuade me.  The appellant's life following the air crash reflects an extreme stress disorder which has caused him to lose everything and to commit serious offences.  At this stage the community is best served by the appellant's continued rehabilitation through an intensive supervision order.  If his lawlessness continues though, that may change and a sentence of imprisonment may become necessary as a personal deterrent.

Conclusion

1. I set aside the sentence of imprisonment and impose an ISO for a period of 8 months with a programme requirement.