Sterle v Wyborn

[2016] WASC 19

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   STERLE -v- WYBORN [2016] WASC 19

CORAM:   MARTINO J

HEARD:   18 & 22 JANUARY 2016

DELIVERED          :   22 JANUARY 2016

FILE NO/S:   SJA 1091 of 2015

BETWEEN:   MELISSA ANNE STERLE

Appellant

AND

BRUCE ALLAN WYBORN
ALLAN KENNETH MAYOR
KEITH JOHNSTONE
Respondents

Catchwords:

Criminal law - Totality principle - Multiple offences of driving without a valid driver's licence

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondents                 :     Ms J E Rhodes

Solicitors:

Appellant:     Legal Aid (WA)

Respondents                 :     State Solicitor for Western Australia

Cases referred to in judgment:

Arcari v Christie [2007] WASC 298

Auburn v Spears (Unreported, WASC, Library No 970508, 2 October 1997)

Bell v Wesley [2007] WASC 264

Findlay v The State of Western Australia [2007] WASC 61

Mears v Holleman [2010] WASC 39

Neves v Rogers [2013] WASC 440

Palmer v Dwyer [2010] WASC 28

Roffey v The State of Western Australia [2007] WASCA 246

Sheiner v Roberts [2009] WASC 281

Sheppard v Blakey [2001] WASCA 309

Thompson v Brock [2013] WASC 289

Woods v The Queen (1994) 14 WAR 341

1. MARTINO J: On 16 October 2015 the appellant, Ms Sterle, was sentenced to a total effective sentence of 16 months' imprisonment to be served. On that day Ms Sterle pleaded guilty to driving under suspension on 25 August 2015, contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA). For that offence she was sentenced to 7 months' imprisonment.

2. That offence breached two suspended terms of imprisonment. The first suspended term of imprisonment was imposed on 20 June 2014 for the offence of driving under suspension on 4 May 2014, contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act.  For that offence she was sentenced to 9 months' imprisonment suspended for 18 months.  On 16 October 2015 Ms Sterle was ordered to serve 5 months of that suspended term of imprisonment, cumulatively on the 7 months' imprisonment imposed for the offence committed on 25 August 2015.

3. The second suspended term of imprisonment was imposed on 26 May 2015, also for an offence of driving under suspension contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act.  Ms Sterle committed that offence on 23 November 2014.  For that offence she was sentenced on 26 May 2015 to 12 months' imprisonment suspended for 15 months.  On 16 October 2015 Ms Sterle was ordered to serve 4 months of that suspended term of imprisonment.  That term was also ordered to be served cumulatively.

4. Ms Sterle seeks leave to appeal against the total effective sentence on the ground it infringes the first limb of the totality principle.

5. The appeal notice was filed on 18 November 2015, outside of the 28‑day period limited by s 10 of the Criminal Appeals Act 2004 (WA). The delay is short and is adequately explained by the affidavit of her solicitor made on 17 November 2015. I grant leave to appeal out of time.

6. On 1 December 2015 the Supreme Court ordered that the application for leave to appeal be heard at the same time as the appeal.

7. The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[1]

   [1] Woods v The Queen (1994) 14 WAR 341; Roffey v The State of Western Australia [2007] WASCA 246.

8. Counsel for Ms Sterle has referred to two decisions of this court:  Sheiner v Roberts[2] and Mears v Holleman[3].  In Sheiner v Roberts McKechnie J reviewed a number of decisions which were contained in a schedule to his reasons and said:

   24It 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.[4]

   [2] Sheiner v Roberts [2009] WASC 281.

   [3] Mears v Holleman [2010] WASC 39.

   [4] Sheiner v Roberts [2009] WASC 281 [24] (McKechnie J).

9. The appellant in Sheiner v Roberts had been sentenced to a total effective sentence of 18 months' imprisonment for five offences of driving under suspension.  Those offences were committed after 10 previous convictions for driving under suspension.  McKechnie J allowed the appeal and reduced the sentence to a total effective sentence of 8 months' imprisonment.

10. In Mears v Holleman EM Heenan J reviewed a number of authorities, including Sheiner v Roberts.  Following that review EM Heenan J said:

    25While every case is slightly different and there may be different circumstances of aggravation and mitigation, this pattern has now emerged as being remarkably stable in this State over the past 10 years, leading to my previous observation in Palmer v Dwyer [2010] WASC 28 at [35] that sentences aggregating in effect somewhere near the region of 10 to 12 months are commonly imposed and seldom exceeded although there have been a small number of instances of longer periods of imprisonment.[5]

    [5] Mears v Holleman [2010] WASC 39 [25] (E M Heenan J).

11. EM Heenan J accepted the concession of the respondent that individual sentences that had been imposed were manifestly excessive.  He allowed the appeal and re-sentenced the appellant to a total effective sentence of 9 months' imprisonment.

12. Counsel for the respondent pointed out that in Sheiner v Roberts the appellant was not in breach of a suspended term of imprisonment.  Counsel referred to cases where longer terms of imprisonment have been imposed.  Some of those cases were noted in Sheiner v Roberts or Mears v Holleman.

13. In Thompson v Brock[6] the appellant was convicted of one count of driving while suspended and sentenced to ten months imprisonment.  That offence breached three suspended terms of 9 months' imprisonment for similar offences.  The suspended terms of imprisonment were imposed for offences of driving while suspended which were committed in the context of other driving offences, namely speeding, driving with a blood alcohol content in excess of 0.05%, driving a vehicle with a false number plate, driving an unlicensed vehicle and driving with a blood alcohol content in excess of 0.08%.  The appellant had 19 prior similar convictions and had been previously sentenced to imprisonment to be served.  The appellant was sentenced to a total effective term of imprisonment of 18 months.  The appeal was dismissed.

    [6] Thompson v Brock [2013] WASC 289.

14. In Thompson v Brock Hall J said:

    18I have taken into account sentences imposed for offences of a similar nature.  The cases support a conclusion that sentences of between 4 and 10 months have been imposed for individual offences of driving under suspension where the offender has committed multiple prior offences:  Sheiner v Roberts [2009] WASC 281; Gable v Nardini [2010] WASC 321 and Patterson v Cutler [2010] WASC 316.

    19There have been cases where higher sentences have been imposed for particularly egregious offending, in particular where there have been a large number of past offences.  See, for example, Findlay v The State of Western Australia [2007] WASC 61; Bell v Wesley [2007] WASC 264 and Arcari v Christie [2007] WASC 298. In some of those cases multiple offences dealt with at the same time have attracted cumulative sentences: Anderson v Stilwell [2006] WASC 257 and Sheppard v Blakey [2001] WASCA 309.[7]

    [7] Thompson v Brock [2013] WASC 289 [18] - [19] (Hall J).

15. In Palmer v Dwyer[8] the offender had been sentenced to a total of 24 months' imprisonment for three offences of driving under suspension, an offence of breach of bail and two offences of reckless driving.  The offender had been sentenced to suspended terms of imprisonment for one of the offences of driving under suspension, the offence of breach of bail and one of the offences of reckless driving.  The appeal was allowed and total sentence reduced to 13 months' imprisonment.

    [8] Palmer v Dwyer [2010] WASC 28.

16. Findlay v The State of Western Australia,[9] Bell v Wesley,[10] Anderson v Stilwell and Sheppard v Blakey[11] are referred to and summarised in Sheiner v Roberts.

    [9] Findlay v The State of Western Australia [2007] WASC 61.

    [10] Bell v Wesley [2007] WASC 264.

    [11] Sheppard v Blakey [2001] WASCA 309.

17. In Arcari v Christie[12] the offender's appeal against a total sentence of 19 months' imprisonment for offences of driving under suspension, speeding at high speeds and driving under the influence of alcohol was dismissed.  The offender drove under suspension while serving two suspended terms of imprisonment.

    [12] Arcari v Christie [2007] WASC 298.

18. Counsel for the State also referred to Auburn v Spears[13].  Where the appellant's appeal against a sentence of 12 months' imprisonment for driving under suspension and while under the influence of alcohol without eligibility for parole was successful, in that the appellant was made eligible for parole, but the length of the sentence was not disturbed.  It needs to be born in mind that the only ground of appeal concerned the refusal to make a parole eligibility order and that a different sentencing regime existed at that time.

    [13] Auburn v Spears (Unreported, WASC, Library No 970508, 2 October 1997).

19. As Beech J said in Neves v Rogers[14] caution is needed in considering patterns of sentencing.  They should not be considered in a blunt mathematical way and each case is sensitive to its own particular circumstances.

    [14] Neves v Rogers [2013] WASC 440.

20. Ms Sterle was aged 38 at the time that she was sentenced.  Her personal circumstances were contained in pre‑sentence reports.  Those personal circumstances were the subject of submissions to the learned Magistrate by her counsel.  Ms Sterle was subject to an intensive supervision order that had been imposed on 26 May 2015 for the offence of possession of a prohibited drug, namely cannabis.  She had previously ridden a bicycle to all the appointments made for her under that order.  Her bicycle had been stolen. On 25 August 2015 she did not want to miss an appointment on that day and she drove.

21. The offence that Ms Sterle committed on 25 August 2015 was her ninth offence in Western Australia of driving without a valid motor driver's licence.  Three of those offences were for driving with a cancelled driver's licence. Ms Sterle's licence had been cancelled in Queensland.  In Queensland Ms Sterle was convicted on one day of three offences of driving under demerit points disqualification.  Ms Sterle's six offences of driving under court suspension are more serious than her other six offences of driving without a licence.[15]  Ms Sterle had not previously been sentenced to a term of imprisonment to be served.

    [15] Neves v Rogers [2013] WASC 440.

22. Ms Sterle has a long history of substance misuse.  This stemmed from a traumatic incident when she was young.  She has had periods of abstinence and relapses.  She had abstained from amphetamines since 22 June 2015.  She was complying with her intensive supervision order and her engagement was positive and she was engaging well with her supervising officer.  She appeared to have made significant progress in developing a pro-social life-style through addressing her substance misuse and studying towards a career in counselling.  She had disassociated herself from some old acquaintances and found long term accommodation.

23. Ms Sterle is a single mother.  She has two daughters aged 17 who were doing their Year 12 exams.  She also has a son who was in Year 7 at school.

24. In her sentencing remarks the learned Magistrate said that she regarded the offending on 25 August 2015 as particularly serious. The Magistrate noted that Ms Sterle had breached the suspended term of imprisonment imposed on 20 June 2014 by driving on 23 November 2014 and that on 26 May 2015 that first suspended imprisonment order had been allowed to continue. The learned Magistrate respected the fact that Ms Sterle had been endeavouring to change her life by addressing her use of drugs, which was to her credit, as was her compliance with the intensive supervision order and the studies she was undertaking. The learned Magistrate noted Ms Sterle's early plea of guilty and allowed her the maximum 25% reduction in sentence allowable for that plea under s 9AA of the Sentencing Act 1995 (WA).

25. The learned Magistrate said that Ms Sterle had blatantly disregarded a court order for a second time.  The learned Magistrate was not satisfied that there was a sufficient change in circumstances to make it unjust to activate the suspended imprisonment orders.  The Magistrate was not prepared to impose the whole of the suspended imprisonment order periods by reason of the principles of totality and taking into account Ms Sterle's rehabilitation.

26. The learned Magistrate imposed the sentences to which I have referred earlier in these reasons.  In imposing those sentences the learned Magistrate expressly referred to the principles of totality.

27. When considering sentences imposed in other cases it is necessary for me to bear in mind both that facts and personal circumstances of each case vary and that the sentencing judicial officer has a discretion as to the total sentence to be imposed.  I cannot allow an appeal simply because another judicial officer would have imposed a different sentence.

28. I have nevertheless reached the conclusion that the sentence imposed does offend the first limb of the totality principle.  In my view the facts of the offending and the matters personal to Ms Sterle do not warrant a sentence of the length that was imposed.  Ms Sterle has a bad record of offending which demonstrates a disregard for the need to comply with the law and with court orders.  The protection of the public required that she be ordered to serve a term of imprisonment.  However her offending was not further aggravated by speeding or reckless driving, as was the case in many of the other cases that have been considered.

29. I therefore grant leave to appeal and allow the appeal.  I do not vary the individual sentences that were imposed, but I order that the sentence of five months imprisonment imposed for the offence committed on 4 May 2014 be served concurrently.  The order that the sentence of four months imprisonment imposed for the offence committed on 23 November 2014 be served cumulatively remains.  The total sentence is therefore eleven months imprisonment. Ms Sterle will become eligible to be considered for release on short term parole once she has served half of that sentence which she commenced serving on 16 October 2015.