Thomson v Brock
[2013] WASC 289
•5 AUGUST 2013
THOMSON -v- BROCK [2013] WASC 289
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 289 | |
| 05/08/2013 | |||
| Case No: | SJA:1046/2013 | 12 JULY 2013 | |
| Coram: | HALL J | 12/07/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL THOMSON JAMES ALEXANDER BROCK |
Catchwords: | Criminal law Driving under suspension 19th offence Breach of suspended sentences Whether total effective sentence of 18 months' imprisonment disproportionate |
Legislation: | Nil |
Case References: | Abfahr v The State of Western Australia [2013] WASCA 87 Anderson v Stilwell [2006] WASC 257 Arcari v Christie [2007] WASC 298 Bell v Wesley [2007] WASC 264 Findlay v The State of Western Australia [2007] WASC 61 Gable v Nardini [2010] WASC 321 Hubbard v Fisher [2001] WASCA 182 Patterson v Cutler [2010] WASC 316 Shaw (1989) 39 A Crim R 343 Sheiner v Roberts [2009] WASC 281 Sheppard v Blakey [2001] WASCA 309 Swain (1989) 41 A Crim R 214 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JAMES ALEXANDER BROCK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G A BENN
File No : MI 5973 of 2012
Catchwords:
Criminal law - Driving under suspension - 19th offence - Breach of suspended sentences - Whether total effective sentence of 18 months' imprisonment disproportionate
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms M Georgiou
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Anderson v Stilwell [2006] WASC 257
Arcari v Christie [2007] WASC 298
Bell v Wesley [2007] WASC 264
Findlay v The State of Western Australia [2007] WASC 61
Gable v Nardini [2010] WASC 321
Hubbard v Fisher [2001] WASCA 182
Patterson v Cutler [2010] WASC 316
Shaw (1989) 39 A Crim R 343
Sheiner v Roberts [2009] WASC 281
Sheppard v Blakey [2001] WASCA 309
Swain (1989) 41 A Crim R 214
- HALL J:
Introduction
1 This is an appeal against a total effective sentence of 18 months' imprisonment imposed on the appellant in the Midland Magistrates Court on 22 March 2013. At the conclusion of the hearing of the appeal I refused leave to appeal, dismissed the appeal and gave brief reasons. I said that more detailed reasons would be published at a later date.
2 The sentence imposed on the appellant comprised several components, a sentence of 10 months' imprisonment was imposed for an offence of driving while suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA). That offence triggered three suspended imprisonment orders for similar offences that had been imposed on 1 June 2011. Each of those suspended sentences was for 9 months' imprisonment. The magistrate activated those sentences and reduced them by one month to take into account time spent in custody. He then ordered that those sentences be served concurrently with each other but cumulatively on the sentence of 10 months. He ordered that the total effective sentence of 18 months' imprisonment be the subject of an order for eligibility for parole.
3 It was not clear from the appeal notice whether the appellant was challenging the 10 month sentence, the original suspended sentences, the decision to activate the sentences or the decision to make the activated sentences cumulative, but in his oral submissions the appellant said that it was the 18 month sentence as a whole that he was seeking to appeal. By that I took it that he was saying that the total effective sentence was one that was disproportionate to the total criminality.
Facts
4 The facts of the offence that brought the appellant before the Magistrates Court were as follows. On 23 March 2012 he was driving a vehicle in Midvale when he was stopped by police. It was established that he did not have a licence. In fact, his licence had been suspended and the suspension was not due to expire until 1 March 2015.
5 In submissions to the magistrate it was submitted that on that day the appellant had purchased a bulk quantity of dog food in Midland. He could not carry it because he had a bad back and had no other means of transporting it. For these reasons he decided to drive a car.
6 The facts in regard to the suspended sentences were not available, however the prosecution notices show that those sentences were imposed for three offences that occurred on separate days in 2007. It would seem that the appellant did not respond to a bail requirement that he attend to be dealt with in respect of those offences and some years passed before he was brought back before the court. The reason for this was that he left Western Australia and lived in Victoria for some time.
7 When he was ultimately dealt with for those offences, on 1 June 2011, suspended sentences for three offences of driving whilst suspended were imposed. There were a number of other offences that were dealt with at the same time. These reveal that each of the driving under suspension offences occurred in the context of other driving offences.
8 On 22 August 2007 the appellant drove a motor vehicle at a speed in excess of the state default limit for that vehicle of 110 km per hour, namely 121 km per hour. He also was driving whilst suspended.
9 On 1 November 2007 the appellant stole a vehicle registration plate, drove a vehicle with in excess of 0.05% of alcohol in his blood, drove a vehicle that had a false number plate and used a vehicle on a road whilst it was unlicensed. In addition on that date he again drove whilst under suspension.
10 On 17 November 2007 the appellant drove an unlicensed motor vehicle whilst he had a blood alcohol reading of in excess of 0.08. He also drove whilst under suspension.
11 For each of the three driving whilst suspended offences, as I have said, the appellant received a sentence of 9 months' imprisonment, suspended for 12 months, when he was ultimately dealt with on 1 June 2011.
Merits of appeal
12 The suspended sentences, in the circumstances, were lenient sentences. I say that because the appellant had a long history of driving whilst suspended. He had by that time already been convicted on multiple occasions of driving under suspension and had been previously imprisoned for it. It may be that the magistrate who imposed the suspended sentences in 2011 considered that some allowance should be made for the fact that there had been a passage of time since the offences were committed. If it was thought that the appellant had amended his conduct that has not proved to be so.
13 The offence which the appellant committed on 22 March 2013 was his 19th offence of this nature. There were also similar offences committed in South Australia and Victoria. The offences in this State were committed between 1994 and 2012 and he had previously been imprisoned for between 2 and 6 months for individual offences.
14 Prior offending does not aggravate an offence, however, it is relevant as an absence of good character. It may also indicate, as I think it does in this case, a person who has shown persistence in the commission of offences and an entrenched disrespect for the law.
15 It is true that there have been some periods where time has passed with comparatively fewer offences. In particular the appellant says that after receiving the suspended sentences on 1 June 2011, he made a concerted effort to change his life, including trying to break his drug habit and achieve some improvement in his mental health by consulting a doctor. As against that he committed a further driving under suspension offence in South Australia on 23 July 2011.
16 There was a suggestion in the proceedings before the magistrate on 22 March 2013 that a psychiatric report be obtained, but the appellant indicated that he did not want to do that, he wanted to be dealt with immediately. I do note that on that occasion he was represented by duty counsel who made a comprehensive plea in mitigation on his behalf, including advising the magistrate of the prior history and lifestyle issues, including mental health issues.
17 But as the magistrate rightly pointed out, there was nothing to indicate that the offence on this occasion was the result of any mental illness or any other lifestyle issue. Indeed, it would seem that on the basis of the reason given by the appellant, it was simply a bad decision. There was no urgency about it and the appellant could scarcely have forgotten that he was disqualified from driving. He did so fully aware of the likely consequences if caught.
18 I 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.
19 There 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.
20 The appellant himself has been imprisoned previously for offences of this sort, although not for a period of this length. He has received sentences of between two and six months in the past. However, it must be noted that this was not a sentence of 18 months for a single offence. Rather, it comprised four offences committed on different dates and the activation of suspended sentences in respect of three of those offences. The suspended sentences had to be activated unless the court decided it was unjust to do so in the view of all the circumstances that had arisen or become known since they were imposed: s 80(3) Sentencing Act 1995 (WA).
21 The appellant argued that he would face particular hardship because his mother intended to return to Victoria and this would make it difficult for him to avail himself of parole. He also said that his imprisonment would be hard for his family, in particular a daughter who faces drug related issues that he wishes to help her with. Neither of these factors justify a conclusion that the sentences imposed here were wrong.
22 A sentence cannot be either reduced or extended on an assumption as to whether or not parole will be granted: Swain (1989) 41 A Crim R 214; Shaw (1989) 39 A Crim R 343; Hubbard v Fisher [2001] WASCA 182. The sentencing judge or magistrate must impose a sentence that is an appropriate reflection of the criminality without regard to whether or not parole may be granted. Equally, therefore, a sentence does not become excessive or erroneous because the prospects of parole subsequently diminish.
23 As regards hardship to an offender's family, as a general principle this must be disregarded other than in exceptional cases: Abfahr v The State of Western Australia [2013] WASCA 87 [71]. This is not such a case.
24 In this case, as I have pointed out, the appellant had 18 similar offences in this State alone. There were also other offences of a similar nature in South Australia and Victoria. The individual sentences imposed here were clearly not manifestly excessive, and it was not inappropriate in the circumstances to make the suspended sentences cumulative.
25 Respect was shown for the totality principle by making the three suspended sentences concurrent on each other, and only cumulative on the 10 month sentence. That was an allowance properly made by the magistrate, and the total effective sentence was one that was not disproportionate to the offending. In those circumstances, the ground of appeal had no reasonable prospect of succeeding. For these reasons leave to appeal was refused and the appeal dismissed.
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