Stone v The State of Western Australia - [2010] WASCA 80

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STONE -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 80

CORAM: McLURE P
OWEN JA

HEARD: 13 APRIL 2010

DELIVERED : 4 MAY 2010

FILE NO/S: CACR 1 of 2010

BETWEEN: DANIEL AARON STONE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 1560 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Unlawful possession of firearm and multiple offences of driving without a valid licence - Totality principle - Sentence of 27 months' imprisonment not disturbed - Licence disqualification of 12 months on each of seven offences to be served cumulatively - Total disqualification of 84 months not disturbed

Legislation:

Road Traffic Act 1974 (WA), s 49(1), (3) and (8)

Result:

Leave to appeal refused

Category: D

Representation:

Counsel:

Appellant: Mr A J Maughan
Respondent: No appearance

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: No appearance

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

Cooke v Ginby (1994) 21 MVR 351
Nabhan v Wood [2009] WASC 66

JUDGMENT OF THE COURT: This is an application for leave to appeal against sentences totalling 27 months' imprisonment imposed for unlawful possession of a firearm, for breach of a protective bail condition and for a series of offences of driving a motor vehicle without a valid licence. The appellant was also disqualified from holding or obtaining a motor vehicle driver's licence for 7 years.

Background

On 11 December 2009 the appellant was presented to the District Court on an indictment alleging that on 4 August 2009 he was in possession of a firearm (a single-barrel shotgun) while not being the holder of a licence or permit to do so and when the firearm had been altered from the design of the manufacturer. He pleaded guilty to the charge. At the same time he pleaded guilty to eight charges set out in a notice under s 32 of the Sentencing Act 1995 (WA). Seven of those charges were of driving a motor vehicle without a valid driver's licence and the eighth was a breach of a protective bail condition.
The appellant appeared without legal representation at the sentencing hearing. Brief details of the charges and the sentences that were imposed are listed in the Schedule to these reasons. The facts relating to each of the nine charges are as follows.
The single count on the indictment arose from an incident that occurred on the afternoon of 4 August 2009. The sentencing judge referred to the facts as read by the prosecutor and indicated that she accepted them and that they formed the basis on which she would sentence the appellant. The grounds of appeal do not attack any particular finding of fact made by the sentencing judge and on which the sentence was based.
There had been a history of problems between the appellant and someone named Ronnie. On 4 August 2009 the appellant was given some information that caused him to drive to the home occupied by Ronnie 'to reason with him'. In his video record of interview he told police that on the way he received a telephone call from an associate, who was in another motor vehicle with several other persons. He told the associates what had happened and they were all 'pissed off'. One of the associates said to the appellant: 'Oh, well, we will come for a ride with you and so, like, intimidate him a bit'. One of the persons in the other motor vehicle had a sawn-off shotgun, although the State accepted that the appellant was unaware of the fact. When they arrived at the premises and began to alight from the vehicles there was an accidental discharge from the firearm and one of the appellant's associates received a wound to the knee. The person who suffered the wound was attended by the appellant and others and then conveyed by others to a hospital for treatment.
The appellant was handed the firearm, which was by then unloaded, and moved in the direction of the front door of the premises. The prosecution relied on a CCTV film which showed the appellant at the scene. It is apparent that the sentencing judge acted on the course of events as disclosed in the CCTV film. The appellant's vehicle was parked in a driveway that is separated from the house by a fence and gate. The appellant must have been given the weapon either in the street or in the driveway outside the gate. It would have been necessary for the appellant then to walk down the driveway past his own motor vehicle and enter through the gate. The CCTV film shows the appellant and an associate walking some distance from the gate towards (and arriving reasonably close to) the front door with the weapon still in the appellant's possession. The CCTV film then shows the appellant and the associate walking back away from the front door towards the gate. The appellant had contended that he had not realised he had the weapon and, as soon as he did, (and after taking only three or four steps) he went back and placed it in the motor vehicle. Given the CCTV film (which her Honour accepted as a reliable record of what had happened, and this is not challenged), the appellant's explanation must be discounted.
The appellant and his associates could not find anyone at the premises they had visited. They were only there for a short time before they left. On the following day the appellant was stopped by police while driving his motor vehicle. He was conveyed to the police station and participated in a video record of interview during which he made certain admissions.
The facts relating to the seven motor vehicle driver's licence offences need not be developed beyond what appears in the Schedule. The final charge (breach of a protective bail condition) arose when the appellant was stopped for a random breath test while driving on Canning Highway, Victoria Park at 10.00 pm on 12 September 2009. On 8 June 2009 the appellant had entered into a bail undertaking to appear at the Perth Drug Court on 14 September 2009 in relation to drug charges. The undertaking included a requirement to reside at a specified address in Ballajura between the hours of 9.00 pm and 7.00 am daily. Being in Victoria Park at 10.00 pm was a breach of the undertaking.

The sentences

The appellant argued that any term of imprisonment ought to be suspended or that he should be placed on an intensive supervision order. The sentencing judge considered, and rejected, that submission and indicated that only a term of immediate imprisonment was appropriate. There is no appeal against this aspect of the sentences.
The sentencing judge imposed the several sentences that are set out in the Schedule. In each case she fixed a starting point and reduced it by 3 months to recognise mitigating factors, including the guilty pleas. The result was an overall sentence of immediate imprisonment for 27 months. Her Honour mentioned the totality principle and accommodated it by making some of the terms concurrent when they would otherwise have been accumulated. The sentence was backdated to 14 September 2009, when the appellant had been taken into custody. He was made eligible for parole on each sentence.
In an exchange with the prosecutor (ts 30 - 31) the sentencing judge noted that any periods of suspension of the appellant's motor vehicle driver's licence would be mandatory and would have to be cumulative on each other and on any current or about to be served periods of suspension. Her Honour imposed a disqualification period of 12 months on each of the seven traffic offences, with each term to be served cumulatively on each other and on the appellant's current disqualifications and any disqualification he was about to serve. This resulted in a total disqualification period (for these offences) of 84 months.

Grounds of appeal

There are two grounds of appeal. First, the sentencing judge imposed a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole and with insufficient regard to matters personal to the appellant. The second ground alleges that the sentencing judge erred in ordering that all periods of disqualification run cumulatively. The aggregate period of disqualification (84 months) is said to offend both limbs of the totality principle (disproportionate to the overall level of criminality and crushing on the appellant).
The first ground is misconceived. At the hearing of the leave application, counsel for the appellant advised the Court that the ground was intended to reflect that the overall sentence infringed the totality principle rather than that any particular term was manifestly excessive. However, in the course of argument, counsel seemed to revert to a manifest excess argument in relation to the firearms charge as well as propounding a totality argument.

Ground 1 - manifest excess and (or) totality

The maximum penalty for possessing an unlicensed firearm in circumstances of aggravation is imprisonment for 7 years: Firearms Act 1973 (WA) s 19(1) and s 19(1ac). In this instance the circumstance of aggravation was that the barrel had been shortened. It is, inherently, a serious offence.
It has to be accepted that when he embarked on the ill-fated journey to sort Ronnie out, the appellant was unaware that one of his associates was carrying a firearm. It also has to be accepted that the appellant did not deliberately arm himself with the weapon for the purpose of the visit and there is no evidence that he actually threatened anyone with it. It is also true that by the time the appellant was handed the firearm it was unloaded. Nonetheless, the appellant took possession of the firearm and he moved in the direction of the front door of the premises with it in his hands. He went some distance towards the front door still carrying the weapon before turning around and moving away from the front door towards the gate and towards his own vehicle, into which he deposited the firearm. It is clear from what the appellant said in the video record of interview that he had gone to the premises to engage in a confrontation with the occupant. While he may not initially have had it in mind to use a weapon in the confrontation, it is open on the basis of the CCTV film to infer that, as events were to unfold, the appellant made the decision to use the firearm for that purpose. This renders the incident more serious than might otherwise be the case. As the sentencing judge remarked, the potential for danger in the situation that existed was considerable and it was very fortunate that the potential was not fully realised.
Looked at overall, the circumstances of this offence are not at the highest level but they are nonetheless serious. It cannot be dismissed as a trivial or inconsequential offence.
The appellant was 25 years of age at the time of sentencing. He had been in a steady relationship since he was 16 years of age. He had been unable to obtain legal aid for his defence and his imprisonment had caused financial hardship for his family. At the time of his remand in custody he had been in full time employment and had prospects of returning to his job if he could avoid a prison term. The appellant submitted that he had made significant positive changes to his life through the Drug Court regime but that these charges had resulted in him being removed from the programme. Since being on remand he had undergone a cognitive skills improvement programme to improve his decision making when under pressure. This, the appellant argued, was evidence that he had a real desire to rehabilitate himself.
However, it is apparent that the sentencing judge had all this material and these submissions in mind when she came to consider the sentence that ought to be imposed. Her Honour was aware that substance abuse was a major problem but noted that the appellant had lapsed back into drug use about 12 months before the sentencing hearing.
General deterrence was a major sentencing consideration in relation to the firearms charge. Given that, personal circumstances would play a lesser role. In our view, the sentence of 12 months (reduced from 15 months to recognise the mitigating factors, including the guilty plea) was not manifestly excessive when viewed against the level of seriousness of the offending conduct.
Counsel for the appellant conceded, quite properly in our view, that none of the individual sentences for the charges the subject of the s 32 notice could be challenged. In our view, insofar as ground 1 alleges manifest excess, it is without foundation.
The totality argument is equally difficult to sustain. On seven different occasions consistently over a period of about 12 months the appellant showed a blatant and flagrant disregard for the law and for his responsibilities to the public as a driver of a motor vehicle. In November 2008 he offended in the same manner a matter of days apart. He cannot claim (and we did not understand him to argue) that his licence had (unbeknown to him) been suspended because of an accumulation of unpaid fines. The fact is that on two occasions his licence was suspended by direct court order.
The maximum term of imprisonment that can be imposed for this offence under s 49(1) and s 49(3) of the Road Traffic Act 1974 (WA) is either 12 months or 18 months, depending on whether the person's licence has been suspended simply because of the accumulation and non-payment of fines or because of a court order (or some other impediment).
We have already said that general deterrence was a major sentencing consideration for the firearms offence. It is just as significant to the traffic infringements. There is an additional, and equally important, consideration; namely, personal deterrence. The sentencing judge recognised this factor (ts 45). The appellant had not come before the court as a first offender and had an extensive history of traffic offences between January 2003 and July 2009 (ts 44). Mere licence suspensions had done nothing to convince the appellant that he had to mend his ways. In our view condign punishment was called for. That is how the sentencing judge saw it and no error has been identified either in the way she approached the task or in the result.
In our view, sentences totalling 27 months' immediate imprisonment for a serious (albeit not the most serious) firearms offence, a blatant and fragrant course of conduct over a 12 month period resulting in seven offences of driving without a valid motor vehicle driver's licence and a breach (by one hour) of a curfew condition in a bail undertaking is well within the range of a sound exercise of the sentencing discretion. It is neither disproportionate to the level of criminality of the appellant's conduct, nor is it crushing in the relevant sense. The totality principle has not been infringed.
Ground 1 has no reasonable prospects of success and leave to appeal should be refused.

Ground 2 - accumulation of the licence disqualifications

In circumstances such as arose in this case, the period for which a person can be disqualified from holding or obtaining a motor vehicle driver's licence is between 9 months and 3 years: Road Traffic Act s 49(1)(b) and s 49(1)(c). In ground 2 the appellant contends (in effect) that to reflect the totality principle some or all of the seven periods of suspension should have been reduced or ordered to be served concurrently.
The argument that the terms should have been less than 12 months is difficult to sustain. Given the consistent and blatant nature of the offending and the need for specific deterrence, periods fixed at one third of the available maximum is well within the range of the sound exercise of the sentencing discretion. It is necessary, therefore, to consider whether some or all of the terms should have been made concurrent. This assumes that a court has power to take that course. That is not how her Honour saw it (ts 30 ‑ 31).
Somewhat surprisingly, counsel did not address the statutory language in either the written or oral submissions on this ground. This must be the starting point. Section 49(8) of the Road Traffic Act is in these terms:
A period of disqualification ordered under subsection (1) is cumulative upon -
(a)any other period of disqualification to which the person may then be subject; or
(b)any period for which the operation of a driver's licence held by the person may currently be suspended.
At first glance s 49(8)(b) seems to require that all terms of disqualification ordered at the same time (that is, for separate offences dealt with at the same court sitting) be served cumulatively. There is a conflict in the authorities on the meaning of this section. In Cooke v Ginby (1994) 21 MVR 351 Walsh J held that s 49(3) (which was not materially different from the current s 49(8)) permitted the imposition of concurrent periods of disqualification. In Nabhan v Wood [2009] WASC 66 Hasluck J came to the opposite view, although it must be said that his Honour seems to have felt constrained by other authorities that touched on this question.
While our tentative view is that s 49(8) requires the imposition of cumulative terms, it is neither necessary nor desirable to determine the matter in this appeal. It is not desirable because, as we have said, no argument was addressed to the statutory language. Counsel simply referred to the authorities and urged the court to apply Cooke v Ginby. It is not necessary because, in our view, even if her Honour erred in regarding herself bound to accumulate the terms, no different sentence should have been imposed: Criminal Appeals Act 2004 (WA) s 31(4).
We should say in passing that if and when the proper construction of s 49(8) arises squarely for determination, regard would need to be paid to s 105 of the Sentencing Act 1995 (WA). In case it should be thought that a construction which favours automatic accumulation of periods of disqualification is unduly harsh and could not represent the intention of the legislature, attention would also have to be directed at the potentially ameliorating effect of s 78 of the Road Traffic Act.
We repeat what we said in the previous section. The appellant's conduct in driving while disqualified on seven different occasions over a 12 month period was exceptionally serious. It called for a stiff penalty to bring home to the appellant the gravity of his offending and the need for him to learn a lesson, to stop engaging in escapist behaviour and to deal with aspects of reality that he (apparently) found problematic and painful (ts 44). In our view, disqualification for 84 months (in addition to other periods of disqualification from previous orders or infringements) is severe but, in the circumstances, necessarily so. The orders do not infringe either limb of the totality principle.

Conclusion

The appellant has not been able to demonstrate that either ground of appeal has a rational and logical prospect of succeeding, or a real prospect of success. Leave to appeal must be refused on each ground. The appeal therefore fails.

SCHEDULE

Count or charge	Offence	Date of offence	Description	Sentence (immediate imprisonment)
Indictment	Aggravated possession of an unlicensed firearm	4 August 2009	See text of reasons.	12 months (reduced from 15 months)
PE 56891/09	Driving without a valid motor vehicle driver's licence	9 September 2008	The appellant drove a vehicle on Wanneroo Road. He was stopped for a traffic matter. He knew his licence had been suspended on 2 February 2008 for non-payment of fines.	9 months cumulative (reduced from 12 months)
MI 765/09	Driving without a valid motor vehicle driver's licence	24 November 2008	The appellant drove a vehicle on Alexander Drive. He was stopped for a random breath test. He knew his licence had been suspended on 2 February 2008 for non-payment of fines.	9 months concurrent (reduced from 12 months)
PE 70045/09	Driving without a valid motor vehicle driver's licence	27 November 2008	The appellant drove a vehicle on Wanneroo Road. He was stopped for a traffic matter. He knew that his licence had been suspended for non-payment of fines.	9 months concurrent (reduced from 12 months)

JO 3220/09	Driving without a valid motor vehicle driver's licence	11 December 2008	The appellant drove a vehicle on Mirrabooka Avenue. He was stopped for a traffic matter. His licence had been suspended by the court on 8 December 2008 for driving which under suspension.	9 months concurrent (reduced from 12 months)
PE 43462/09	Driving without a valid motor vehicle driver's licence	30 January 2009	The appellant drove a vehicle on Wanneroo Road. He was involved in a minor traffic accident. The other driver reported the accident and the police went to the appellant's home on 7 June 2009. He admitted to driving when he knew his licence had been suspended.	9 months concurrent (reduced from 12 months)
PE 48484/09	Driving without a valid motor vehicle driver's licence	5 August 2009	On 5 August 2009 the appellant drove a vehicle on Alexander Drive. He was stopped for questioning about the firearm offence. The appellant's driver's licence had been suspended by the court on 15 July 2009 until 15 October 2009.	9 months concurrent (reduced from 12 months)
PE 55581/09	Driving without a valid motor vehicle driver's licence	12 September 2009	The appellant drove a vehicle on Canning Highway. His licence had been suspended by the court on 22 April 2009 for 12 months.	6 months cumulative (reduced from 9 months)

PE 56895/09

Breach of a protective bail condition

12 September 2009

The appellant failed to comply with a curfew requirement of his bail undertaking entered into on 8 June 2009.

9 months concurrent (reduced from 12 months)