Stewart v Waghorn - [1999] WASCA 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: STEWART -v- WAGHORN [1999] WASCA 150

CORAM: MILLER J

HEARD: 17 AUGUST 1999

DELIVERED : 1 SEPTEMBER 1999

FILE NO/S: SJA 1125 of 1999

BETWEEN: IAIN ALEXANDER STEWART
Appellant
AND
JOHN PATRICK WAGHORN
Respondent

FILE NO/S :SJA 1132 of 1999

BETWEEN :IAIN ALEXANDER STEWART
Appellant
AND
DARREN EDWARD ROBINSON
Respondent

Catchwords:

Appeal - Driving under suspension - Imprisonment - Whether should properly have been suspended - Calling in suspended sentences - Principles to be applied

Legislation:

Road Traffic Act 1974, s 66

Sentencing Act 1995, s 80(1) and s 80(3)

Result:

Appeals allowed
Suspended sentences substituted
No orders made in relation to calling in of previous suspended sentences

Representation:

SJA 1125 of 1999

Counsel:

Appellant: Mr J B Prior
Respondent: Ms C V M Barton

Solicitors:

Appellant: Williams Ellison
Respondent: State Crown Solicitor

SJA 1132 of 1999

Counsel:

Appellant: Mr J B Prior
Respondent: Ms C V M Barton

Solicitors:

Appellant: Williams Ellison
Respondent: State Crown Solicitor

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

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Cranssen v The King (1936) 55 CLR 509
House v The King (1936) 55 CLR 499
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
O'Brien v Ritchie, unreported; SCt of WA, Library No 990123, 17 March 1999
Police v Cadd & Ors (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394
R v Osenkowski (1982) 30 SASR 212
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Walsh v Thomas & Anor, unreported; SCt of WA; Library No 970711; 17 December 1997

Case(s) also cited:

Nil

MILLER J:
History
The appellant was brought before the Court of Petty Sessions at Midland on 15 June 1999 on a series of offences which arose out of his apprehension on a traffic matter on 5 January 1999. On that day he was driving a Ford Fairmont vehicle in Farrell Road, Stratton when he was stopped by police officers. It became apparent that he had consumed liquor and he was requested by the police to undergo a preliminary test. As a result of that test he was then required to accompany police to the Midland police station for a breath analysis test. This he refused to do, walking away from the police and shouting obscenities at them. After being warned several times to desist from his conduct he was advised that he was under arrest. An attempt was made to put him in the rear of a police patrol vehicle but the appellant pulled away and struggled with police, kicking an officer three times in the groin area and grabbing a second officer before striking him to the side of the face and forehead.
Ultimately police subdued the appellant who was handcuffed, placed in the rear of a van and taken to Midland police station. There he was breath tested and found to have a blood alcohol level of .135 at the time of his apprehension in Stratton. It was found on inquiry at the police station that the appellant did not hold the appropriate valid driver's license for the class of vehicle he was driving, that license having been suspended on 27 October 1998 for life.
On 27 October 1998 the appellant had come before the Court of Petty Sessions at Midland on charges of driving a motor vehicle whilst under suspension and driving under the influence of alcohol. The offence of driving under suspension was a fifth offence and the offence of driving under the influence of alcohol a second offence. The learned Magistrate imposed a sentence of 12 months' imprisonment for driving under suspension, but suspended the sentence of imprisonment for a period of two years. In relation to the offence of driving under the influence of liquor there was also a sentence of imprisonment of 12 months likewise suspended for a period of two years. The learned Magistrate said:
"I shall suspend the operation of a prison sentence, 12 months imprisonment suspended for 2 years. The same for the driving under the influence, which means of course Mr Stewart, if you commit any offence punishable with imprisonment, during the course of the next 2 years, you will be locked up for a very long period of time. It's up to you. Stay out of trouble and you'll escape."
When the appellant came before the Court of Petty Sessions at Midland on 15 June 1999 the learned Magistrate was called upon to deal with him for the various charges arising out of the incidents which had occurred on 5 January 1999 and was also required to deal with the appellant in relation to the suspended sentences of imprisonment imposed on 27 October 1998: Sentencing Act 1995, s 80(1). In that respect the learned Magistrate was called upon to order the appellant to serve the term of imprisonment that was suspended; or to serve part of it; or to substitute another period of suspension; or to impose a fine. This the learned Magistrate had to do unless he was satisfied that it would be unjust to do so in view of all the circumstances that had arisen or had become known since the suspended sentence was imposed: Sentencing Act 1995, s 80(3).
Counsel who appeared for the defendant before the Court of Petty Sessions did bring to the attention of the learned Magistrate a number of developments that had occurred since October 1998. These related to the appellant's medical condition, which in or about February 1999 was diagnosed as Attention Deficit Hyperactivity Disorder. This condition had been suspected by Dr Cranley who had seen the appellant twice in January and once in early February 1999 for anxiety and depression. He had referred him to Dr S Derham who reported on 10 June 1999 that the appellant's developmental and educational patterns were typical of the Disorder which was something that had become increasingly recognised and was likely to respond to medical treatment. Various investigations had been carried out which revealed no evidence of any pathology in the brain, but a particularly low blood pressure reading which was said to be a physical finding commonly observed in people with a similar disorder of personality and behaviour. In the opinion of Dr Derham this problem with behaviour was not satisfactorily remedied by confinement in institutions, they being likely to aggravate the problem. According to Dr Derham the appellant was prepared to take appropriate medication and to undergo review from Dr Derham himself and from his general practitioner. Dr Derham's conclusion was:
"He should continue to be actively engaged in outdoor activities eg. Football and tending horses and appropriately reminded to observe the law. However, a gaol sentence and incarceration can be confidently expected to be inappropriate and medically disastrous. After consulting with two general practitioners, I have to recommend medical treatment."
Counsel who appeared for the defendant in the Court of Petty Sessions stressed before the learned Magistrate that nobody had ever diagnosed the appellant's condition prior to February 1999 and once diagnosed the appellant had accepted the need for treatment. For these reasons it was submitted that a sentence of imprisonment would be inappropriate.
The learned Magistrate took the view that the appellant had been given all the available chances to which he was entitled. He pointed out that it was on 27 October 1998 that suspended sentences of imprisonment had been imposed for driving offences and yet by 5 January 1999 the appellant was against driving under suspension and with a percentage of alcohol in his blood which exceeded .08 percent. He said:
"He has got five previous for driving under the influence and for excess 08, and he has - - this is the fifth for driving which suspended, so it's not as if he didn't know, and one might want to be as kind as they can, never mind his medical problem, a problem that has recently got a stable woman and has got a child, but again, when people go drinking and driving, and driving while suspended, they can't really come to court and say 'Well, didn't really mean it, I've got all kinds of problems, and I don't know what I'm doing'. They've had those - - Mr Stewart has had those medical problems for some time. Quite obviously he's been aware of them."
After pointing out that the appellant had been imprisoned in 1986 and 1989, his Worship then dealt with the suspended sentences of imprisonment, saying:
"But one can only give so many chances. I will activate the sentences that were suspended by my brother Brown, two sentences there of 12 months imprisonment, and I will make them concurrent."
In relation to the offences for which the appellant was before the Court on 15 June 1999 the learned Magistrate sentenced the appellant to 15 months' imprisonment for driving whilst under suspension, imposed a fine and a period of disqualification in relation to the charge of driving with a blood alcohol level over .08 percent and imposed sentences of 1 month's imprisonment concurrent in relation to each of the assaults on the police officers, with a further 1 month imprisonment for resisting arrest and a fine and disqualification in relation to failing to comply with the requirements of a member of the police force made pursuant to s 66 of the Road Traffic Act. The end result was that the appellant was sentenced to an effective 15 months' imprisonment with various fines, orders for costs and licence disqualifications.
Appeal
On 25 June 1999 Anderson J granted the appellant leave to appeal the sentences of imprisonment imposed pursuant to the provisions of s 80(1) of the Sentencing Act 1995.
Further leave to appeal was granted by myself on 9 July 1999, limited to the calling in of the suspended sentence. Amended grounds of appeal presented at the hearing formulated the grounds in both matters as follows:
"SJA 1125 of 1999
1.The Learned Presiding Magistrate erred in fact and in law in imposing sentences of imprisonment on Complaint Nos. 251, 253, 254 and 255 of 1999.
PARTICULARS
(i)The Learned Presiding Magistrate failed to give any weight or sufficient weight to the medical circumstances of the Applicant;
(ii)The Learned Presiding Magistrate failed to give any weight or sufficient weight to the Applicant's change in personal antecedents since he had appeared in the Court of Petty Sessions on 27 October, 1998.
2.The Learned Presiding Magistrate failed to give any weight or sufficient weight to the rehabilitative effect on the Applicant of a suspended sentence of imprisonment.
3.The term of imprisonment of 15 months imposed on Complaint No. 251 (Driving Under Suspension) was excessive in the circumstances.

SJA 1132 OF 1999
1.The Learned Presiding Magistrate erred in fact and in law in ordering that the suspended sentence of 12 months imprisonment imposed on 27 October, 1997 in the Court of Petty Sessions at Midland should be served.
PARTICULARS
(i)The medical circumstances of the Applicant made it unjust to order the suspended sentence be served;
(ii)The Applicant's medical circumstances had only become known since the suspended prison sentence was imposed."

The end result is that the totality of the sentences of imprisonment imposed by the learned Magistrate on 15 June 1999 are the subject of review by way of appeal before me.
The appellant submits that the diagnosis of the appellant's medical condition, his willingness to comply with medical treatment, and a number of significant changes in his personal antecedents (including marriage and birth of a child) tilted the balance in favour of a non‑custodial disposition of the matters before the learned Magistrate on 15 June 1999. Whilst accepting that driving whilst disqualified is a serious offence for which subsequent offences are usually punished with sentences of imprisonment, it was argued that a suspended sentence of imprisonment was appropriate on the facts of this case. Whilst acknowledging the decisions in Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 and Police v Cadd & Ors (1997) 69 SASR 150, counsel for the appellant referred to the decision of McKechnie J in O'Brien v Ritchie, unreported; SCt of WA, Library No 990123, 17 March 1999 as an indication of the fact that a suspended sentence of imprisonment is a "real and onerous punishment" and one which in the instant case may have had the result of reform: R v Osenkowski (1982) 30 SASR 212.
In relation to the activation of the provisions of s 80(1) of the Sentencing Act 1995 it was likewise submitted that given the medical and personal circumstances of the appellant which had become known since the suspended sentences had been pronounced, it was unjust to order that the terms of imprisonment there imposed should be served. It was argued that the learned Magistrate was obliged to take into account all of the appellant's personal circumstances which had arisen since the imposition of the suspended term of imprisonment: Walsh v Thomas & Anor, unreported; SCt of WA; Library No 970711; 17 December 1997. Because of a real potential and opportunity for rehabilitation and curtailment of re‑offending it was argued that the provisions of s 80(3) of the Sentencing Act 1995 were applicable.
The respondent argued that the offence of driving whilst disqualified ordinarily warrants imprisonment, and whilst a suspended sentence of imprisonment will always be open in the particular circumstances of a case, it will be an unusual case where the circumstances of the offence support suspension: Krakouer v Durka (supra). In this case it was argued that the offence was at the upper end of the scale of seriousness as the appellant had first been disqualified from driving for life in October 1993 and was under the influence of alcohol at the time of commission of the offence, displaying an ongoing flagrant disregard for the law. Counsel for the respondent submitted that an overall sentence of 15 months' imprisonment was not manifestly excessive in the circumstances and there was nothing in the particular circumstances of the case to suggest that a suspended sentence was warranted. While it was conceded that the prospects of rehabilitation were a relevant consideration in favour of suspending any sentence, it was argued that in exercising his discretion the learned Magistrate had taken into account the appellant's medical problem and other aspects of his antecedents. It was submitted that in imposing a custodial sentence in relation to the matters before the Court on 15 June 1999 the learned Magistrate did not err by applying any wrong principle, by allowing an extraneous or irrelevant matters to guide or affect him, by mistaking the facts, or failing to take into account any material consideration: House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509.
The respondent further argued that it was open to the learned Magistrate to activate the suspended sentences as he did, and it was submitted that the sentences of imprisonment in relation to assaulting the police officers were entirely appropriate, reliance being placed on Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999.
Conclusion
It is the case that in Krakouer v Durka (supra) and Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999, I took the view that the offence of repeatedly driving whilst disqualified ordinarily warrants imprisonment and whilst a suspended sentence of imprisonment will always be open in the particular circumstances of any case, it would be an unusual case where the circumstances of the offence supported suspension. Whilst McKechnie J favoured a suspension of sentence in O'Brien v Ritchie (supra), his Honour was to some extent influenced by the fact that the appellant in that case had, during his period on remand, been incarcerated in maximum security.
The question is whether on the facts of this case the learned Magistrate erred in calling in the sentences of imprisonment which had previously been suspended, and in adding to those sentences of imprisonment an effective three months' imprisonment for the incidents which had occurred in Stratton on 5 January 1999.
It would appear from the reasons of the learned Magistrate that he made an error in concluding that the appellant's medical condition had been known to him prior to the offences which he committed on 5 January 1999. The words "Mr Stewart has had those medical problems for some time. Quite obviously he has been aware of them" rather suggest that the learned Magistrate was led into error in thinking that prior to 5 January 1999 the condition described by Dr Derham had been diagnosed. In fact, it had not, as is made clear from the testimony of the witness Lynley Voak called to give evidence before the learned Magistrate, and the medical reports themselves which were tendered at the hearing. Whilst appreciating that the learned Magistrate was dealing with the appellant in the course of a busy day in Petty Sessions, it does nevertheless appear that he was rather dismissive of the appellant's medical problem, as the words "never mind his medical problem" suggest. In fact, the diagnosis of the problem of Attention Deficit Hyperactivity Disorder since the series of offences committed on 5 January 1999 was central to the submissions of counsel for the appellant before the learned Magistrate. In essence, what was being put, was that this medical condition was the likely explanation for the long history of offending by the appellant, and that with the treatment recommended by Dr Derham the prospects of rehabilitation of the appellant from further anti‑social conduct and offending could be anticipated.
In Krakouer v Durka (supra) I pointed out that in R v Liddington (1997) 18 WAR 394 Malcolm CJ and Steytler J had expressed the view that a suspended sentence under s 39(2) of the Sentencing Act, whether it be a suspension in whole or in part of the sentence, is for the primary purpose of rehabilitation of the offender. I set out in full the passage from the judgment of Steytler J (at 406) with which I respectfully agree. There, Steytler J stressed that in addition to prospects of rehabilitation regard had to be had to any other mitigating circumstances and "reasons militating in favour of an exercise of mercy". As His Honour pointed out, no comprehensive list of specific criteria can be made, and the factors to be taken into account in considering whether or not a sentence of imprisonment should be suspended (and their relative importance in any case) will necessarily vary with the differing circumstances of each case.
In Krakouer v Durka I respectfully adopted the observations of Doyle CJ in Police v Cadd (supra) (at 167-168) where His Honour stressed that the offence of driving whilst disqualified is one that ordinarily warrants imprisonment and that its seriousness may make it difficult to justify suspension of the sentence of imprisonment. Doyle CJ did however point out that circumstances justifying suspension, whilst unlikely to be found in routine or run of the mill cases, might apply in circumstances where there was (inter alia) a community interest in rehabilitation without imprisonment and (generally) having regard to the circumstances of the offender. As His Honour said, the circumstances of the offender must be considered and "may … warrant the giving of a last chance by means of a suspended sentence".
Were it not for the medical evidence put before the learned Magistrate on 15 June 1999 there would, in my view, be no basis whatever for suggesting that a proper disposition of the various matters arising out of the appellant's driving on the 5 January 1999 warranted anything other than a sentence of imprisonment for the offences of driving under suspension and for the assaults on the police officers and the resisting of arrest. Likewise, in relation to the disposition of previously suspended sentences, the appellant would have been liable to have been dealt with under the provisions of s 80(1) of the Sentencing Act 1995, as there could be no suggestion that it would be unjust to deal with him otherwise than under that sub-section. Whether the sentence imposed for driving under suspension should have been as great as 15 months' imprisonment is another question. Although the fifth offence of its kind, the appellant had not previously been sentenced to imprisonment for driving under suspension. True it was that he had been given a suspended sentence for 12 months for the fourth offence of driving under suspension, but even so, 15 months' imprisonment was very close to the maximum which could have been imposed and in my view an excessive disposition of the matter. Consistent with my own decisions in Krakouer v Durka (supra) and Calway v Wiebe (supra) a sentence of the order of six months' imprisonment would in my view been appropriate. Likewise, leaving aside any question of medical evidence, the suspended sentences imposed on 27 October last year would necessarily have been called in under s 80 of the Sentencing Act, although in my view, not in their entirety. An order calling upon the appellant to serve six months' imprisonment on each of the suspended sentence, each to be served concurrently with the sentence imposed on 15 June for driving under suspension would, in my view, have been appropriate. The sentences of imprisonment for assault and resisting arrest were, in my view, appropriate but should have been ordered to have been served concurrently so that the appellant would in the ordinary course of the events properly have been ordered to serve a sentence of imprisonment of six months.

However, given the medical evidence which was before the learned Magistrate, it was in my view one of those cases in which the appellant should have been given "a last chance" by means of a suspended sentence or sentences. The medical evidence established a very likely cause for the appellant's consistent anti‑social and criminal behaviour over preceding years, and its late diagnosis in or about February 1999 justified in my view an exercise of mercy to give to the appellant the opportunity for rehabilitation and an understanding of the root causes of his previous criminal and anti‑social behaviour. To this extent he would truly be given a very last chance, but nevertheless one to which in my view he was entitled.
I consider that the learned Magistrate erred in the exercise of his discretion in the sentencing process in this case. That error was caused by a misunderstanding of the medical evidence and what seems to have been a conclusion that the appellant had been aware of his medical problems for some time, including prior to 5 January 1999. As a fact, it was only after 5 January 1999 that the medical problems were diagnosed. Their diagnosis and recommended treatment put an entirely different light on the appellant's prior criminal history. I consider that the learned Magistrate ought to have sentenced the appellant to imprisonment for six months, suspended for a period of 12 months in relation to the offence of driving under suspension. The sentences of one month imprisonment in relation to each of the assaults on police officers and the sentence of one month's imprisonment for resisting arrest should, in my view, have also been suspended in each case for a period of three months. In relation to the application of s 80 of the Sentencing Act it is my view that the medical evidence showed that it would be unjust to call in the suspended sentences of October 1998 in accordance with the provisions of s 80(1) of the Sentencing Act, it being unjust to do so "in view of all the circumstances that have arisen or have become known since the suspended imprisonment was imposed". I would therefore allow the appeal in relation to the calling in of the two suspended sentences.
The result is that I would allow the appeal in each matter and make the following formal orders:
SJA 1125 of 1999
1.The appeal be allowed.
2.The sentence of 15 months' imprisonment imposed upon the appellant for driving under suspension on 5 January 1999 be set aside and in lieu thereof there be substituted a sentence of imprisonment of 6 months suspended for a period of 12 months.
3.The sentences of one month's imprisonment for each of the assaults on police officers and one month's imprisonment for resisting arrest be set aside and in lieu thereof there be substituted sentences of one month's imprisonment in each case suspended for a period of three months.
SJA 1132 of 1999
1.The appeal be allowed.
2.The decision of the learned Magistrate to activate the sentences of 12 months' imprisonment suspended for a period of two years on 27 October 1998 for the offences of driving under suspension and driving under the influence of alcohol be set aside and in lieu thereof, pursuant to the provisions of s 80(3) of the Sentencing Act1995 there be no order made in relation to those suspended sentences.