Wetton v Lincoln

[2022] WASC 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WETTON -v- LINCOLN [2022] WASC 212

CORAM:   MCGRATH J

HEARD:   23 JUNE 2022

DELIVERED          :   23 JUNE 2022

PUBLISHED           :   24 JUNE 2022

FILE NO/S:   SJA 1014 of 2022

BETWEEN:   ALEXANDRA CLAIRE WETTON

Appellant

AND

DAVID WAYNE LINCOLN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE P MALONE

File Number            :   FR 7893 of 2021

Catchwords:

Criminal law - Road traffic offence - Driving under influence of alcohol - Appeal against sentence - Whether fine manifestly excessive - Appeal against length of motor driver's licence disqualification

Legislation:

Criminal Appeals Act 2004 (WA) s 8, s 14(2)
Road Traffic Act 1974 (WA) s 64(1), s 64(2), s 71H
Road Traffic Code 2000 (WA) r 11(3)
Sentencing Act 1995 (WA) s 6, s 9AA

Result:

Leave to the appellant to adduce further evidence on re-sentencing is granted
Leave to appeal is granted on grounds 1 and 2
Leave to appeal is refused on ground 3
Appeal is allowed on grounds 1 and 2
The fine of $2,250 is set aside and in lieu thereof a fine of $1,700 is imposed
The period of disqualification from holding or obtaining a driver's licence for 30 months is set aside and in lieu thereof a period of disqualification of 12 months is imposed commencing 4 November 2021

Representation:

Counsel:

Appellant	:	Mr A G G Smith
Respondent	:	Ms A Y Westerside

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	State Solicitor's Office

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

Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176

CE Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144

Crocker v Vinicombe [2019] WASC 416

Del Borrello v The City of Vincent [2019] WASC 300

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; (2000) 74 ALJR 1538; (2000) 175 ALR 315

Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489

Forbes v Durant [1999] WASCA 85

Illich v Campion [2002] WASCA 301

Lawson v The State of Western Australia [No 3] [2018] WASCA 129

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Pavlitsas v Rowe [2013] WASC 233

R v Kilic [2016] HCA 48; (2016) 259 CLR 256

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Woods v Webb (1990) 11 MVR 95

MCGRATH J:

1. The appellant was convicted, upon her own endorsed plea of guilty, of one offence of driving a motor vehicle, with a blood alcohol content exceeding 0.08 grams of alcohol per 100 millilitres of blood, contrary to s 64(1) of the Road Traffic Act 1974 (WA) (the DUI offence)[1] and one offence of exceeding the speed limit, contrary to r 11(3) of the Road Traffic Code 2000 (WA) (the speeding offence).[2]  In respect of the DUI offence, the learned Magistrate imposed a fine of $2,250 and disqualified the appellant from holding or obtaining a driver's licence for a period of 30 months.  In respect of the speeding offence, the learned Magistrate imposed a fine of $200.

   [1] Prosecution Notice charge number FR 7893 of 2021.

   [2] Prosecution Notice charge number FR 7894 of 2021.

2. The appellant now seeks leave to appeal the sentence and the order imposed in respect of the DUI offence, contending that the quantum of the fine and the period of the disqualification were manifestly excessive.

3. The respondent concedes that the fine and the period of disqualification were manifestly excessive and therefore, the appeal should be allowed.  For the following reasons, I have determined that the respondent's concession is properly made and that the appeal should be allowed. 

The Magistrates Court proceedings

1. On 10 December 2021, the matter was heard before the learned Magistrate.  The prosecutor observed that the appellant had entered an endorsed plea of guilty and outlined the facts, being that the appellant had been driving a motor vehicle whilst in excess of the prescribed alcohol limit, namely with a reading of 0.088 grams of alcohol per 100 millilitres of blood and was exceeding the speed limit in a 60 km zone, with a speed of 72 kms per hour.[3] 

   [3] ts 2 (10/12/2021).

2. The learned Magistrate, in his sentencing remarks, stated that the appellant had informed the court, by way of a letter, of a number of personal factors in mitigation.[4]  I will consider the matters personally referrable to the appellant when I determine the merits of the grounds of appeal.

   [4] ts 3 (10/12/2021).

3. The learned Magistrate accepted that the plea was entered at the first reasonable opportunity and referred to the previous offending of the appellant.[5]  The learned Magistrate initially imposed a fine of $3,000 and a disqualification period of 36 months.  The prosecutor then respectfully corrected the learned Magistrate by submitting that the maximum fine that could be imposed for the DUI offence was a fine of $2,250.  Therefore, the learned Magistrate corrected the sentence and imposed a fine of $2,250 and disqualified the appellant from holding or obtaining a driver's licence for a period of 30 months.

   [5] ts 3 (10/12/2021).

Appeal grounds

1. The appellant relies upon three grounds of appeal in the following terms:

   1.The sentence imposed by the learned Magistrate with respect to Fremantle charge 2893/2021, namely the fine of $2,250, was manifestly excessive. 

   2.The order made by the learned Magistrate that the appellant be disqualified from holding or obtaining a driver's licence for a period of 30 months was manifestly excessive. 

   3.The learned Magistrate erred in law by considering that the sentence and disqualification he imposed ought to equal or exceed that of a previous sentence imposed upon the appellant. 

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[6]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[7]

   [6] Criminal Appeals Act 2004 (WA), s 9(1).

   [7] Criminal Appeals Act 2004 (WA), s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[8]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[9]

   [8] Criminal Appeals Act 2004 (WA), s 9(2).

   [9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

4. The court may dismiss or allow the appeal and may set aside the sentence and substitute a sentence that should have been imposed.[10] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.  That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.[11]

   [10] Criminal Appeals Act 2004 (WA), s 14.

   [11] Roberts v The State of Western Australia [2014] WASCA 239 [47].

Application to adduce further evidence

1. The appellant seeks to rely upon further evidence, namely an affidavit of the appellant affirmed 21 June 2022 and an affidavit of Mr Smith, legal practitioner, affirmed 23 June 2022, should the appeal be allowed and the court re-sentence the appellant.  The appellant, in her affidavit, deposes that the disqualification has significantly impacted her and her family members.  The respondent did not oppose the court receiving the two affidavits should the court allow the appeal and re-sentence the appellant.  I will receive the further evidence for the purpose of re-sentencing.[12]

   [12] Criminal Appeals Act 2004, s 41(4).

Assessments of the merits of the appeal

1. I will now consider the merits of each ground of appeal.

Ground 1

1. By ground 1, the appellant contends that the quantum of the fine imposed in respect of the DUI offence was manifestly excessive.  That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open to the learned Magistrate in the exercise of a sound sentencing discretion.  Here, the court must be satisfied that the sentence is unreasonable or plainly unjust.[13] 

   [13] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; (2000) 74 ALJR 1538; (2000) 175 ALR 315; (2000) 115 A Crim R 558, 324 ‑ 325.

2. Determining whether a sentence is excessive involves considering the maximum possible sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the scale of the seriousness of the criminal conduct in relation to crimes of the kind in question and the personal circumstances of the offender.[14]  The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.  There is no single correct sentence.  What is important are the unifying principles which sentences in comparable cases reveal and reflect.

   [14] Sentencing Act1995 (WA), s 6; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.

3. Section 6(1) of the Sentencing Act 1995 (WA) requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence including the vulnerability of any victim of the offence, any aggravating and mitigating factors.

4. The maximum fine for the DUI offence, given that the appellant's offending constituted a subsequent offence of exceeding 0.08 grams of alcohol, is $2,250 and the minimum fine is $1,600, pursuant to s 64(2) of the Road Traffic Act.

5. The learned Magistrate imposed the maximum fine available for the offence.  The maximum penalty for an offence is imposed only if the case is recognisably within the worst category.  An offence falling within the 'worst category' of offending is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty.[15] Both the nature of the crime and the circumstances of the offender are considered in determining whether the case is of the worst type.

   [15] R v Kilic [2016] HCA 48 [18]; (2016) 259 CLR 256.

6. The offending by the appellant could not be said to be so grave as to warrant the imposition of the maximum prescribed penalty, having regard to the nature of the offence and the circumstances of the appellant.  It would be an exceptional case in which an offender is entitled to a discount for pleading at the first reasonable opportunity, that the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified.[16]  This is not such a case. 

   [16] Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [38].

7. The appellant pleaded guilty at the first reasonable opportunity. Whether s 9AA of the Sentencing Act applies in respect of a sentence of a fine has not been resolved at law, with differing views being expressed.[17] I need not resolve that issue. I accept that the appellant's plea was entered at the first reasonable opportunity and that, if s 9AA applies, then a 25% discount is afforded. If s 9AA has no application in respect of a sentence of a fine, then the plea of guilty is, in any event, afforded significant weight as a mitigating factor.

   [17] Del Borrello v The City of Vincent [2019] WASC 300 [28], [43]; CE Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144 [42] - [48]; Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489 [37] - [40].

8. The appellant forwarded to the learned Magistrate correspondence that outlined her troubled personal circumstances.[18]  The appellant stated that she had been subject to domestic violence in 'an abusive environment', which was supported by a document stating that the appellant had been granted a compensation award under the Criminal Injuries Compensation Act2003 (WA). The appellant also stated that her elderly parents rely upon her to act as a carer.

   [18] Letter to the Court from the appellant dated 3 December 2021.

9. The appellant outlined her health issues, which was evidenced by a medical certificate from a general practitioner confirming that she suffered from extensive mental health issues including ADHD, anxiety, an eating disorder, depression and borderline personality disorder.[19]

   [19] Medical Certificate from Phoenix Medical Centre dated 24 November 2021.

10. The appellant stated that this offending occurred when she was unable to sleep, causing her drive to her a friend's house to obtain medication.[20]  Further, the appellant stated that her past driving offences had been committed 'under extreme duress', whilst being heavily medicated.[21] 

    [20] ts 3 (10/12/2021).

    [21] ts 3 (10/12/2021).

11. In respect of the relevant criminal record of the appellant, in 2008 the appellant was convicted of driving under the influence of alcohol, with a reading of 0.174, contrary to s 63(1) of the Road Traffic Act. In 2011, the appellant was convicted of driving in excess of 0.08 grams of alcohol per 100 millilitres of blood, with a reading of 0.109, contrary to s 64(1) of the Road Traffic Act. In 2013, the appellant was convicted of refusing a breath test, contrary to s 67(2) of the Road Traffic Act. 

12. Further, the appellant was convicted in 2012 for refusing a preliminary breath test, contrary to s 67A(1) of the Road Traffic Act, and driving with no authority, contrary to ss 49(1)(a) and (3)(b) of the Road Traffic Act. 

13. The conviction for the current offence is deemed to be a second offence pursuant to s 64 of the Road Traffic Act.

14. I also note that in 2012, the appellant was convicted of possessing a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).

15. The appellant's criminal history, whilst not aggravating, means that she was not entitled to be convicted as a person with prior good character.  In addition, given the appellant's convictions for being in excess of blood alcohol levels and refusing breath tests under the Road Traffic Act, her criminal record is highly relevant.  Personal deterrence is a relevant sentencing consideration.

16. The appellant's offending is serious given that it involves her speeding on a road that intersects with two major roads, with a blood alcohol level towards the higher end of the range within the band of offending.

17. However, given the antecedents of the appellant, and the plea of guilty at the first reasonable opportunity, it was not open to the learned Magistrate to impose the maximum sentence available. 

18. Accordingly, leave is granted on ground 1 and the appeal must be allowed.  I will consider the re-sentencing of the appellant after considering the further two grounds of appeal.

Ground 2

1. By ground 2, the appellant contends that the disqualification from holding or obtaining a driver’s license for a period of 30 months is manifestly excessive.

2. A motor vehicle driver's licence disqualification imposed under the Road Traffic Act does not form part of the sentence imposed.[22]  Rather, the disqualification order is made as a result of a conviction and is characterised as being ancillary or incidental to the sentence imposed on the offender.[23] 

   [22] Lawson v The State of Western Australia [No 3][2018] WASCA 129 [56].

   [23] Lawson v The State of Western Australia [No 3][2018] WASCA 129.

3. Ground 2 properly understood, contends that the period of disqualification is excessive to the extent that it manifests an error in the exercise of the court's discretion and that therefore, the learned Magistrate erred in law and fact under s 8(1)(a)(i) of the Criminal Appeals Act or that a miscarriage of justice resulted under s 8(1)(b) of the Criminal Appeals Act.

4. The respondent's concession that this ground of appeal should be allowed is properly made.

5. The paramount consideration in determining the length of disqualification is the safety of the community.  Imposing a period of disqualification fulfils a number of purposes, including ensuring the safety of the community, general deterrence, specific deterrence and punishment.[24]  The principles relevant to an appeal against sentence will also be relevant in an appeal against a disqualification order.[25] 

   [24] Forbes v Durant [1999] WASCA 85 [18].

   [25] Crocker v Vinicombe [2019] WASC 416 [4], [81]; Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176, [71].

6. In respect of the appellant's current offending, given that the offence was the second offence of exceeding 0.08 grams of alcohol per 100 millilitres of blood, contrary to s 64(1) of the Road Traffic Act, the minimum disqualification period is 10 months with no maximum disqualification period.

7. It is difficult to apply or identify the range of disqualification periods ordinarily imposed for this type of offending, given that the penalties vary significantly depending upon whether there have been previous offences and the quantity of alcohol in the offender's blood.[26]  The respondent submits that the court has previously imposed the minimum or close to the minimum disqualification period for unexceptional cases of this type of offending.[27] The 30 months' disqualification imposed by the learned Magistrate amounts to three times, or 300%, of the minimum disqualification period of 10 months.

   [26] Pavlitsas v Rowe [2013] WASC 233 [16]; Forbes v Durant [1999] WASCA 85 [15].

   [27] Respondent's written submissions [27] citing Woods v Webb (1990) 11 MVR 95, 96; Illich v Campion [2002] WASCA 301; (2002) 37 MVR 74 [1], [15].

8. The appellant has a history of similar offending and therefore, personal deterrence and community safety are relevant.  I accept that there is a ten‑year gap since the appellant previously offended in similar circumstances.  However, her criminal history is most relevant. 

9. I am satisfied that the period of disqualification of 30 months is manifestly excessive.  Accordingly, leave to appeal is granted on ground 2 and the appeal is allowed.

Ground 3

1. By ground 3, the appellant contends that the learned Magistrate erred in law by finding that the sentence and disqualification period ought to exceed or be equal to that of a previous sentence imposed upon the appellant.  The respondent does not concede this ground of appeal.

2. The appellant relies upon the following remarks of the learned Magistrate:[28]

   [28] Appellant's written submissions dated 20 May 2022 [9], citing ts 5 (10/12/2021).

   HIS HONOUR:  A top range 08, or something. Yes. So coming back to - it was the reading of 088, and it was subsequent. The maximum is 2250, with a minimum of 10 months suspension. So there will be a fine of $2250, with costs of 259.30. Now, can I just run this by you. Because I was looking at the wrong section.

   HENRY, MR:  Yes.

   HIS HONOUR:  The last time Ms Wetton got caught, it was a refused breath test. And so she got 2100 with a disqualification of 30 months. Here she goes with a reading of 08, fourth offence, and I was inclined to go beyond the 30 months. But not - of course, appreciating that even for a subsequent 10 months, is the minimum for that. But I just think, when you've done your fourth offence, the court has got to be a (indistinct) about the disqualification. Do you have a view on that?

   HENRY, MR:  I do, your Honour. And I would suggest that's why the legislation doesn't have the range in place of the MDL disqualification.  So they will set a minimum, but it does allow the court's discretion - - -

   HIS HONOUR:  Yes.

   HENRY, MR:  to raise the - - -

   HIS HONOUR:  Yes.  So ‑ ‑ ‑

   HENRY, MR:  ‑ ‑ ‑ bar, as such.

   HIS HONOUR:  I was trying to - I must admit, looking at the wrong section - beat the 30 months that I thought was the minimum, but I think I will make it 30 months, which makes it equivalent to the suspension of what happened in September '13. Because otherwise, talking about somebody with a fourth offence over a - yes - period   of years. Yes. So there will be a disqualification for a period of 30 months, taking into account the roadside disqualification.

   For the speeding matter, which was 72 in a 60 zone, and therefore 12 over, there will be a fine of $200. Yes. Sorry, I was forgetting about correlating it with the reading. I was looking at the wrong read out.

1. The appellant contends that the learned Magistrate's determination of sentence was made 'with almost exclusive regard to her prior offending' and that 'little weight or regard' appears to have been placed on her personal circumstances and plea of guilty.[29]  I do not accept that submission.

   [29] Appellant’s written submissions dated 20 May 2022 [10] - [11].

2. It is necessary that the observations of the learned Magistrate, upon which the appellant relies in support of this ground, are properly understood in the context of the entire sentencing remarks.  A magistrate's sentencing remarks should not be examined in a piecemeal manner, searching for error by relying upon a remark that may have some infelicity of language and which is not considered in the context of the entire sentencing remarks. 

3. I accept the respondent's submission that the learned Magistrate's observation that, 'beating the 30 months that I thought was the minimum' properly understood is a reference to his Honour's initial understanding that the minimum statutory disqualification was 30 months and not a reference to the previous disqualification period imposed upon the appellant for the 2013 offence.  His Honour was expressing a view that the period of disqualification should be greater than the statutory minimum of 30 months, as he erroneously initially believed it to be, or the actual statutory mandatory minimum period being 10 months.

4. Further, the learned Magistrate expressly considered the plea of guilty at the first reasonable opportunity and the matters personally referable to the appellant raised in mitigation.  Therefore, the learned Magistrate appropriately considered all relevant sentencing considerations. 

5. Accordingly, leave is not granted on ground 3.

Re-sentencing

1. Given that I have allowed the appeal on grounds 1 and 2, it is necessary that I re‑sentence the appellant in respect of both the quantum of the fine and the length of the disqualification period.

2. In re-sentencing in respect of both the quantum of the fine and the length of the disqualification period, I take into account the factors in mitigation, being that the appellant pleaded guilty at the first reasonable opportunity and the factors personally referable to her.

3. Further, I also take into account the further evidence relied upon by the appellant outlined in her affidavit, affirmed 21 June 2022.  The appellant deposes that since her conviction she has obeyed the disqualification order and has not driven a motor vehicle, nor has she been charged with any further criminal offences.  The appellant states that the disqualification has significantly impacted her and her elderly parents.  The appellant's mother is now terminally ill and currently in a high dependency unit in hospital, having been taken to the hospital within the past week.  The appellant continues to act as a carer to both of her parents but has been unable to assist in transporting her parents to attend appointments in the community and, in particular, medical practitioners. 

4. Further, being unable to drive a motor vehicle has resulted in the appellant not being able to have contact on a regular basis with her social acquaintances, which has negatively impacted her mental health.  As I have observed, the learned Magistrate accepted the medical certificate, which outlined the significant mental health issues that challenge the appellant.  I give full weight to the matters raised by the appellant in her affidavit.

5. I am mindful of the prior offending of the appellant accepting that the most recent offence was committed over eight years ago. 

6. In determining the quantum of the fine, I must take into account the means of the appellant and the extent to which payment of the fine will burden her.[30]  The appellant is in receipt of the minimum wage and is of limited financial means.

   [30] Sentencing Act 1995 (WA), s 53.

7. After carefully considering all relevant factors, I set aside the fine imposed by the learned Magistrate and impose a fine in the amount of $1,700. 

8. The period of disqualification must be in excess of the statutory minimum, given that the prior offending of the appellant and therefore the need for the penalty to act as a personal deterrent.  Further, the penalty must act as a general deterrent to prevent recidivism in respect of similar offending.  However, in determining the extent to which the period of disqualification exceeds the statutory minimum, I am mindful of all relevant sentencing factors.

9. I set aside the period of 30 months and in lieu thereof impose a period of disqualification from holding or obtaining a driver’s licence for 12 months. The period of disqualification will be backdated to commence on 4 November 2021, being the date the disqualification commenced pursuant to s 71H of the Road Traffic Act.

Orders made

1. Accordingly, I make the following orders. 

   1.Leave to the appellant to adduce further evidence, namely the affidavit of the appellant affirmed on 21 June 2022 and the affidavit of Mr Smith affirmed on 23 June 2022, on re‑sentencing is granted.

   2.Leave to appeal is granted on grounds 1 and 2.

   3.Leave to appeal is refused on ground 3.

   4.Appeal is allowed on grounds 1 and 2.

   5.The fine of $2,250 is set aside and in lieu thereof a fine of $1,700 is imposed.

   6.The period of disqualification from holding or obtaining a driver's licence for 30 months is set aside and in lieu thereof a period of disqualification of 12 months is imposed commencing on 4 November 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS

Associate to the Honourable Justice McGrath

24 JUNE 2022