Style v Rudrum
[2012] WASC 385
•15 OCTOBER 2012
STYLE -v- RUDRUM [2012] WASC 385
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 385 | |
| 15/10/2012 | |||
| Case No: | SJA:1103/2012 | 11 OCTOBER 2012 | |
| Coram: | HALL J | 11/10/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced to 6 months community based order with 10 hours community service and supervision requirement | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL AARON STYLE LEE DOUGLAS RUDRUM |
Catchwords: | Criminal law Appeal against sentence Sentence of 9 months' imprisonment for offence of driving whilst disqualified Whether sentence manifestly excessive Appeal conceded Turns on own facts |
Legislation: | Nil |
Case References: | Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Gable v Nardini [2010] WASC 321 McDougall v The State of Western Australia [2009] WASCA 232 Mears v Holleman [2010] WASC 39 Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 Sheiner v Roberts [2009] WASC 281 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LEE DOUGLAS RUDRUM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : PE 27163 of 2012, PE 27164 of 2012
Catchwords:
Criminal law - Appeal against sentence - Sentence of 9 months' imprisonment for offence of driving whilst disqualified - Whether sentence manifestly excessive - Appeal conceded - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Appellant resentenced to 6 months community based order with 10 hours community service and supervision requirement
Category: B
Representation:
Counsel:
Appellant : Ms K A Gorski
Respondent : Ms A E Johnson
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gable v Nardini [2010] WASC 321
McDougall v The State of Western Australia [2009] WASCA 232
Mears v Holleman [2010] WASC 39
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Sheiner v Roberts [2009] WASC 281
(Page 3)
1 HALL J: On 13 July 2012 the appellant appeared in the Magistrates Court at Mandurah and pleaded guilty to driving an unlicensed vehicle, contrary to s 15(3) of the Road Traffic Act 1974 (WA) and driving whilst his authority to drive was suspended, contrary to s 49(1)(a) of the Road Traffic Act. He was fined in respect of the first charge and sentenced to 9 months' imprisonment on the second charge. An order that he be disqualified from holding a driver's licence for 15 months cumulative was also made on the second charge.
2 The appellant filed an appeal notice on 10 September 2012 seeking leave to appeal against the 9 month prison sentence and the licence disqualification order on the second charge. The appeal notice was filed approximately one month out of time. An extension of time was sought and an affidavit from the appellant's solicitor was filed in support of that application.
3 The appellant's grounds of appeal are essentially that the prison sentence and disqualification order were manifestly excessive. The respondent has conceded that the appeal should be allowed and that the appellant should be resentenced. I am satisfied that that concession was properly made and that the appeal should be allowed. I made orders to that effect on 11 October 2012. These are my reasons for doing so.
4 The facts of the offending were that on the evening of Wednesday, 16 May 2012 the appellant drove a Holden Barina on Bagot Road (near Rokeby Road) in Subiaco. He was stopped by police for a vehicle check. The vehicle he was driving did not have a current registration, its registration having expired on 26 February 2011. He also did not have a current driver's licence; his licence having been previously suspended, most recently on 31 January 2012 for a period of 12 months.
5 The driving under suspension offence was the fifth such offence committed by the appellant. The four previous offences had been committed since March 2011. For each of the previous offences he had been fined and received disqualifications from holding a licence.
6 The appellant was 20 years old at the time he came to be sentenced. He was employed and had a one-year-old child. No explanation for the offending was given other than that he had failed to appreciate the seriousness of his behaviour. All but one of his previous offences had been dealt with after he had been convicted on entering endorsed pleas of guilty. It would appear that he had only once previously appeared in court in respect of these previous offences. On this occasion, a warrant was
(Page 4)
- issued by the Magistrates Court for his arrest, clearly because imprisonment was being contemplated by the magistrate.
7 The prosecution submitted to the magistrate on 13 July 2012 that a term of imprisonment should be imposed but left open the possibility that such a sentence could be suspended. In mitigation it was submitted that due principally to the appellant's youth and his employment, a suspended sentence would be an appropriate deterrent.
8 The magistrate noted that the driving under suspension was the fifth such conviction. She said that it seemed that the appellant had 'just simply not listened' to what he had been told by the court in the past. She said that notwithstanding his youth and employment, the frequency and number of the appellant's offences of this nature convinced her that she needed to impose an immediate term of imprisonment. She considered the question of suspension but said that the factors of youth and employment were not sufficient to persuade her that suspension was appropriate.
9 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA), Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). The claim of manifest excess depends on establishing implied error in the type or length of the sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.
10 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ), McDougall v The State of Western Australia [2009] WASCA 232 [12] - [13] (McLure P).
11 The maximum penalty for an offence of this nature for a second or subsequent offence is a fine of not less than 20 penalty units or more than 80 penalty units and imprisonment for not more than 18 months. A court must also order that an offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years: Road Traffic Act s 49(1)(a) and s 49(3)(c).
(Page 5)
12 The offence of driving a motor vehicle without an appropriate driver's licence, especially when having been disqualified, is not a trivial offence. Continued offending by a driver under suspension displays a serious disrespect for lawful authority and a disregard for the privilege of driving. In such circumstances deterrence, both general and particular, assumes greater significance: Sheiner v Roberts [2009] WASC 281 [16].
13 In Sheiner v Roberts a schedule of cases showing penalties imposed for driving whilst under suspension over a period of ten years was reproduced. In Gable v Nardini [2010] WASC 321 a similar review of many cases was undertaken. In Mears v Holleman [2010] WASC 39 E M Heenan J said that the cases revealed that sentences for convictions for driving whilst under suspension involving fourth, fifth, sixth, seventh or eighth such offences had resulted in terms of imprisonment, after appeal, of between 4 and 9 months with eligibility for parole [24].
14 The sentence of 9 months imposed in this case was within the range referred to. The fact that a sentence is within the range is often a factor which counts against any suggestion that there has been an error in the exercise of sentencing discretion. However, it is only one factor and every sentence must be a reflection of the particular circumstances of the offending and the personal circumstances of the offender. A sentence may be within a range and yet be manifestly excessive when regard is had to the particular circumstances.
15 Many of the cases which have attracted sentences towards the top of the range have involved offenders who have committed a greater number of prior offences than the appellant. Many of those offenders also had extensive prior criminal records and were older than the appellant. In many of those cases the driving occurred in the context of the commission of other offences such as speeding, driving under the influence of alcohol or reckless driving.
16 In contrast the appellant was a young man who had never received any sentence greater than a fine. There was nothing to suggest that his driving at the time of the offence was aggravated by any other feature. It is also relevant that he had pleaded guilty at the first opportunity. In these circumstances, whilst a sentence of 9 months was within the possible range, it was not a sentence of a length that was justified in all of the particular circumstances applicable here.
17 As regards the order of disqualification, it was obligatory for the magistrate to impose a disqualification of at least 9 months. Previous
(Page 6)
- disqualification orders of between 9 and 12 months had been made and were still current. A discretion as to the length of any disqualification must be exercised. The purpose of disqualification is to both penalise the offender and protect other road users. The period required to achieve these objectives will not necessarily always be greater than any previous order made. This aspect of the sentence must also be properly proportional to the circumstances of the offending and the personal circumstances of the offender. The respondent accepts that the length of disqualification was inappropriate here.
18 For these reasons, grounds 2 and 3 of the appeal, which refer to manifest excess, should be allowed. Ground 1, which asserts that the magistrate failed to properly consider a suspended sentence is not made out on the transcript of the proceedings and was not pressed at the hearing of the appeal.
19 In resentencing the appellant it is important to take into account that he has now spent 3 months in prison. A sentence of imprisonment may well have been appropriate but not of the length here imposed. On resentencing it is not possible to impose any sentence of 6 months or less. To impose a sentence of more than 6 months now, even if it were backdated, could possibly result in the appellant serving further time in custody. In any event, I am entitled to take into account additional information which is now available.
20 That information includes an affidavit setting out the appellant's personal details. Having taken those details into account I was satisfied that a sentence other than one of imprisonment is now appropriate. I imposed a community based order with a supervision requirement and a community service requirement. It was necessary to impose a community service requirement due to s 106(4) of the Road Traffic Act. However, bearing in mind the imprisonment already suffered by the appellant the amount of community service required did not need to be significant.
21 For the above reasons, at the hearing of the appeal, I made the following orders:
1. An extension of time to appeal be granted.
2. Leave in respect of grounds 2 and 3 is granted.
3. Leave in respect of ground 1 is refused.
4. The appeal is allowed.
(Page 7)
- 5. The sentence of 9 months' imprisonment and 15 months disqualification on charge number PE 27164/12 is set aside and in lieu thereof the appellant is sentenced to a community based order of 6 months with a supervision requirement and a community service requirement of 10 hours. The appellant is also disqualified from holding a driver's licence for 10 months, cumulative on existing disqualification orders.
2
7
1