Wilhelm v The State of Western Australia
[2013] WASCA 273
•29 NOVEMBER 2013
WILHELM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 273 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:15/2013 | 11 OCTOBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 29/11/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appeal re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | SIMON AARON WILHELM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appeal against order Fraud Possession of child pornography Section 32 notice offences Driver's licence disqualification orders Totality principle Manifest excess |
Legislation: | Road Traffic Act 1974 (WA), s 49, s 60 |
Case References: | House v The King [1936] HCA 40; (1936) 55 CLR 499 Roffey v The State of Western Australia [2007] WASCA 246 Wilhelm v The State of Western Australia [2013] WASCA 188 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILHELM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 273 CORAM : McLURE P
- BUSS JA
MAZZA JA
- CACR 16 of 2013
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 727 of 2012, IND 810 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appeal against order - Fraud - Possession of child pornography - Section 32 notice offences - Driver's licence disqualification orders - Totality principle - Manifest excess
Legislation:
Road Traffic Act 1974 (WA), s 49, s 60
Result:
Appeal allowed
Appeal re-sentenced
Category: B
Representation:
Counsel:
Appellant : Ms N B Stewart
Respondent : Ms S Linton
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
House v The King [1936] HCA 40; (1936) 55 CLR 499
Roffey v The State of Western Australia [2007] WASCA 246
Wilhelm v The State of Western Australia [2013] WASCA 188
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: Before the court are appeals against sentence (CACR 15 of 2013) and the length of a driver's licence disqualification order (CACR 16 of 2013).
Background
4 On 12 October 2012, the appellant pleaded guilty to a large number of offences in two indictments and in a notice under s 32 of the Sentencing Act 1995 (WA). Indictment 727 of 2012 alleged three counts of fraud. Indictment 810 of 2012 alleged seven counts of possession of child pornography. The s 32 notice alleged two counts of stealing a motor vehicle, 21 counts of fraud, two counts of driving under a licence suspension order, one count of stealing, one count of breach of bail, one count of speeding, one count of failing to stop when called upon by police, one count of reckless driving and one count of driving a vehicle with altered numberplates. For all of this offending, the appellant was sentenced to a total effective sentence of 5 years and 2 months' imprisonment with eligibility for parole, backdated to commence on 4 June 2012. In respect of the traffic offences, the appellant was disqualified from holding or obtaining a driver's licence for 6 years and 6 months. He was also fined a total of $2,900.
5 In relation to CACR 15 of 2013, the appellant does not challenge any of the individual sentences that were imposed upon him, but alleges that the total effective sentence of imprisonment infringed the first limb of the totality principle. With respect to CACR 16 of 2013, the appellant alleges that the individual driver's licence disqualification periods were manifestly excessive and that the total driver's licence disqualification period was disproportionate to his traffic offending.
6 The appellant unsuccessfully appealed against his convictions: Wilhelm v The State of Western Australia [2013] WASCA 188.
The offences committed by the appellant
7 The offences committed by the appellant were as follows.
Indictment 727 of 2012 alleged that:
(1) Between 13 February 2005 and 5 December 2005 at Leederville the appellant, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely $14,000 in money, for the appellant.
(2) Between 20 July 2004 and 23 July 2005 at Leederville the appellant, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely $34,200 in money, for the appellant.
(3) Between 29 November 2004 and 31 December 2005 at Leederville the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely $20,000 in money, for the appellant.
Indictment 810 of 2012 alleged that:
(1) On 27 July 2006 at Carlisle the appellant had in his possession child pornography, in the form of photographs.
(2) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
(3) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
(4) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
(5) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
(6) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
(7) On the same date and at the same place the appellant had in his possession child pornography, in the form of computer data.
A notice pursuant to s 32 of the Sentencing Act 1995 (WA), alleged the following offences:
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Facts of indictment 727 of 2012
8 In approximately August 2004, Mr Chong agreed to sell to the appellant his Nissan GTi-R motor vehicle for $6,500. The appellant paid a deposit of $200 and took possession of the vehicle. The vehicle remained the property of Mr Chong.
9 In approximately October 2004, the appellant agreed to sell the Nissan GTi-R to Mr Duke (the complainant in count 3) for $20,000, on the condition that the vehicle was fully repaired, re-sprayed and re-licensed in Mr Duke's name. It was agreed that upon full payment by Mr Duke to the appellant, the car would be transferred to Mr Duke. The appellant misled Mr Duke by telling him that he was the owner of the Nissan GTi-R. On or about 3 December 2004, Mr Duke paid the appellant the $20,000. Despite Mr Duke's repeated requests, the Nissan GTi-R was not transferred to him (count 3).
10 In approximately January 2005, the appellant and Mr Jameson (the complainant in count 1) discussed the Nissan GTi-R. The appellant did not tell Mr Jameson about his purported sale of the vehicle to Mr Duke. Mr Jameson agreed to pay the remaining $6,300 to buy the Nissan GTi-R from Mr Chong, as well as finance its repair and restoration. The appellant and Mr Jameson agreed that the appellant was to organise and coordinate the repairs and restoration. It was agreed that if the car was later sold, the appellant and Mr Jameson would split the proceeds, or alternatively, Mr Jameson would pay the appellant a sum of money if he (Jameson) decided to keep the car.
11 On 14 February 2005, Mr Jameson gave Mr Chong a cheque for $6,300. Mr Chong signed the transfer papers to Mr Jameson as purchaser. Thus Mr Jameson became the owner of the vehicle.
12 Between February and June 2005, Mr Jameson, still in ignorance of the fact that the appellant had purportedly sold the Nissan GTi-R to Mr Duke, made three payments to the appellant totalling $14,000: $9,500 was for repair and restoration works, which were not performed; $4,000 was given to the appellant as a loan secured by the appellant's interest in the car; $500 was for a deposit on another car. The appellant repaid $1,200 of the loan.
13 It was not until November 2005 that Mr Jameson discovered that the appellant had purported to sell the vehicle to Mr Duke. In December 2005, the appellant moved the vehicle to another location without Mr Jameson's knowledge. The appellant then told Mr Jameson that for $5,000 he could come and collect the unassembled parts of the Nissan GTi-R. Mr Jameson never received delivery of the vehicle or any further loan repayments (count 1). On 27 July 2006, the police located the vehicle at the appellant's address in Carlisle.
14 With respect to count 2, the complainant is Mr Sudic. In 2004, Mr Sudic wanted to purchase a Nissan Skyline vehicle and he enlisted the appellant's help to do so. On 21 July and 6 August 2004, Mr Sudic made payments to the appellant totalling $14,000 in anticipation of the purchase of the vehicle. In due course, a black Nissan Skyline became available for purchase. The appellant and Mr Sudic met the owner and it was agreed that Mr Sudic would purchase the vehicle for $12,950. This purchase did not eventuate because the appellant had, without Mr Sudic's consent, used some of the $14,000 for his own purposes.
15 The appellant told Mr Sudic about the Nissan GTi-R (the subject of counts 1 and 3) and said that the vehicle was available to be purchased for $6,400. Mr Sudic agreed to purchase this vehicle with what remained of the $14,000 he had given to the appellant. The appellant did not effect this purchase.
16 Later, the appellant drew Mr Sudic's attention to a white Nissan Skyline that was available for sale. Mr Sudic gave the appellant $4,000 and told him to use this and the balance of the $14,000 to purchase the vehicle. Although Mr Sudic gained possession of the vehicle, the appellant did not pay the money given to him by Mr Sudic to the vendor. In mid 2005, the appellant told Mr Sudic that the money that was supposed to have been paid to the vendor had been used by his girlfriend without his knowledge. Mr Sudic still wanted the white Nissan Skyline and gave the appellant $16,200 to pay the vendor. Again, the appellant failed to pay the vendor and retained the money for his own use.
17 The total amount of money paid to the appellant by Mr Sudic to purchase the Nissan Skylines was $34,200. The vendors did not receive any of the money. Rather, the money was retained by the appellant for his own use. In the end, Mr Sudic paid directly to the vendor an additional $19,700 for the purchase of the white Nissan Skyline.
Facts of indictment 810 of 2012
18 On 27 and 28 July 2006, the police executed a search warrant at the appellant's home address. During the search, the appellant agreed that he was the only occupant of the premises and the only person who had access to the premises.
19 During the search, the police found 24 printed A4 images showing naked juvenile females aged between approximately 6 to 14 years, in various sexual poses. The police also seized 111 CDs. It was later discovered that six of these discs contained images of the same type as the A4 images.
20 Altogether, the police discovered 762 images and 17 videos that constituted child pornography. Of these, 195 images and 13 videos depicted non-penetrative sexual activity between children or solo masturbation by a child.
The s 32 notice offences
Charge 1
21 The complainant in respect of this offence was the appellant's former partner, Ms Sutton. On 9 December 2004, without Ms Sutton's permission or knowledge, the appellant drove her Nissan Skyline vehicle to a mechanical workshop in Morley and arranged for the engine to be removed. At a later date, the complainant found out where the vehicle was being kept. She attended the premises and unsuccessfully demanded its return. The following day, the appellant took the car to his factory unit, where it remained until the police discovered it during the search on 27 July 2006.
Charge 2
22 This offence is related to count 1 on indictment 727 of 2012. After Mr Jameson purchased the Nissan GTi-R from Mr Chong, the appellant moved the vehicle to a location unknown to Mr Jameson and refused to inform Mr Jameson of the vehicle's whereabouts.
Charges 3 - 23
23 All of these 21 charges concern the appellant's fraudulent use of cheques.
24 The appellant was the sole operator of a business cheque account styled The Wilhelm Family Trust trading as Wilhelm Automotion. The business name, Wilhelm Automotion, was deregistered on 5 July 2005.
25 Between 19 December 2005 and 6 June 2006, the appellant wrote cheques for various amounts and passed the cheques as payment for goods and services. At the time each cheque was presented, the appellant knew that there were insufficient funds in the account for the cheque to be honoured. Each cheque was, in fact, dishonoured. The total value of the fraudulent cheques was $10,781.65.
Charge 24
26 On 27 July 2006, police officers saw the appellant driving a motor vehicle on a public road. The appellant's driver's licence was, at the time, suspended for failure to pay fines. The appellant was stopped by the police. He admitted to the police that he knew he was under suspension.
Charge 25
27 The appellant was ordered to appear in the Perth Magistrates Court on 10 November 2006 and signed a bail undertaking to that effect. In breach of that undertaking, he failed to appear on that day and a bench warrant was issued. He remained at large until 5 June 2012.
Charges 26 - 31
28 On 21 March 2007, a police officer trained a radar device on a motor vehicle being driven by the appellant. It recorded the appellant driving 21 km per hour in excess of the speed limit. The appellant did not stop when called upon. He then drove recklessly to avoid apprehension. He drove through a red light, accelerated heavily in excess of the speed limit in a built up area and nearly struck a road worker when the vehicle hit a kerb. The appellant then abandoned the vehicle and fled from the scene. The vehicle was fitted with false numberplates and the appellant's driver's licence was under fine suspension. The false numberplates were stolen from a vehicle that the appellant was meant to be repairing.
The sentences and orders imposed by the learned sentencing judge
29 The individual sentences and orders imposed by the learned sentencing judge were as follows:
Indictment 727 of 2012:
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| Maximum Statutory Penalty | Sentence/Final outcome |
1 |
| 7 years' imprisonment | 8 months' imprisonment (cumulative) |
2 |
| 7 years' imprisonment | 14 months' imprisonment (cumulative) |
3 |
| 7 years' imprisonment | 10 months' imprisonment (cumulative) |
Total: 2 years 8 months' imprisonment | |||
Indictment 810 of 2012:
| Particulars of each offence | Maximum Statutory Penalty | Sentence/Final outcome |
1 |
| 5 years' imprisonment | 2 months' imprisonment |
2 |
| 5 years' imprisonment | 3 months' imprisonment |
3 |
| 5 years' imprisonment | 2 months' imprisonment |
4 |
| 5 years' imprisonment | 4 months' imprisonment |
5 |
| 5 years' imprisonment | 6 months' imprisonment (cumulative) |
6 |
| 5 years' imprisonment | 6 months' imprisonment |
7 |
| 5 years' imprisonment | 4 months' imprisonment |
Total: 6 months' imprisonment | |||
Section 32 notice:
| Particulars of each offence | Maximum Statutory Penalty | Sentence/Final outcome |
1 & 2 |
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3 |
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16 |
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4 – 15 and 17 - 23 |
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24 |
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$500 fine 18 months' licence disqualification period (cumulative) |
25 |
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26 |
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27 |
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28 |
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3 years' licence disqualification period (cumulative) |
29 |
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30 | No authority to drive (licence suspended) | 12 months' imprisonment and a fine between $200 - $1,500 and a licence disqualification period of 3 years | 6 months' imprisonment (cumulative) $800 fine 2 year's licence disqualification period (cumulative) |
31 | Stealing | 7 years' imprisonment | 2 months' imprisonment |
| Total: 2 years' imprisonment, $2,900 in fines and disqualified from holding or obtaining a driver's licence for 6 years 6 months | |||
30 As I have said, the total effective sentence imposed by his Honour was 5 years and 2 months' imprisonment, $2,900 in fines and a driver's licence disqualification period of 6 years 6 months.
The appellant's antecedents
31 The appellant was 42 years of age at the time of sentencing. The offences had been committed between 6 to 8 years before his sentencing. The appellant was charged within a reasonable period of time, but the resolution of the proceedings was delayed as a result of the appellant fleeing the jurisdiction.
32 The appellant's parents separated when he was about 9 years old. Although the appellant is close to his mother, he is completely estranged from his father. The appellant left school after completing year 11. He was employed in the automotive industry between the ages of 17 and 24, and then joined the navy, where he spent 6 years as a storeman. He was discharged from the navy because he stole navy property. At about the time he was discharged from the navy, his marriage failed. His wife sought child support from him. The appellant was resentful of this obligation because he was unhappy with orders that were made with respect to child custody and access. Consequently, to evade his child support obligations, he made it appear that he had no ability to pay child support.
33 In an interview with a court appointed psychologist, he was vague about his employment after he left the navy. At the time the offences were committed, he did not operate a bank account in his own name. As the appellant's counsel at first instance put it, the appellant decided 'to take his life off the radar so that he wouldn't be in a position to or be required to make payments in what he thought were very unjust circumstances' (ts 21). Consequently, the appellant's life was, of his own choosing, chaotic and disorganised for some time.
34 The psychologist described the appellant as 'enigmatic, intelligent and articulate'. There was no apparent evidence of personality disorder, although that was a finding that his Honour regarded with some scepticism (ts 37). The psychologist hypothesised that the appellant's offending was:
[D]riven by poor judgement, poor emotional regulation … poor consequential thinking, poor moral development, financial challenges, and poor business skills.
35 That hypothesis does not explain the child pornography offences. As to those, the appellant told the author of the pre-sentence report that he was 'sexually stimulated by … small-breasted women'.
36 The psychologist assessed the appellant as having a low risk of violent sexual offending. She noted that the appellant had little insight into his shortcomings. The psychologist noted no remorse with respect to the possession of child pornography offences. The psychologist and the author of the pre-sentence report noted that the appellant externalised blame for the fraud offences onto his former partner.
37 The appellant has a prior criminal history in both New South Wales and Western Australia, although it could not be described as extensive. Apart from a conviction for stealing as a servant in 1997, which related to the theft of property from the navy, the appellant's record in this State was limited to minor traffic offences. His New South Wales record disclosed relevant traffic offending including prior convictions for negligent driving, dangerous driving and driving while disqualified. None of his offending, either in this State or New South Wales, was recent.
The sentencing remarks
38 His Honour described the fraud offences in indictment 727 of 2012 as serious, noting that the impact on the victims 'would have been considerable'. He described the child pornography offences as being 'not of a high level of objective seriousness'. He remarked that had those offences stood alone, while a term of imprisonment would have been imposed, it might well have been suspended. In respect of the s 32 notice, his Honour paid particular attention to the breach of bail, where the appellant remained at large for 6 years. He also noted that the reckless driving offence was committed in order to avoid recapture by the police and exposed a number of people to harm.
39 His Honour expressly had regard to issues of concurrency, cumulation and totality. He said that in his view the total criminality involved in the appellant's offending warranted a total sentence of 5 years 2 months' imprisonment.
40 His Honour did not specifically address the question of totality in relation to the driver's licence disqualification orders.
The appellant's submissions
41 The appellant submitted that the total effective term of 5 years and 2 months' imprisonment was not an appropriate reflection of the appellant's total criminality. It was submitted that all of the sentences for the fraud offences in indictment 727 of 2010 should have been made concurrent with each other. The appellant further submitted that the sentences for the possession of child pornography charges should have been made concurrent with each other and concurrent with the other sentences. In respect of the sentences for the offences contained in the s 32 notice, it was submitted that it was inappropriate to accumulate the sentences imposed for the offences of reckless driving and driving while under a driver's licence suspension order (charge 30) as these offences comprised a continued episode of offending.
42 With respect to the driver's licence disqualification orders, the appellant's counsel submitted that the disqualification period for the reckless driving offence was manifestly excessive and should have been in the order of 18 months. The other licence disqualification periods, it was said, should have also been also reduced and ordered to be served concurrently.
43 On behalf of the respondent, it was accepted that the total effective sentence of imprisonment was high but was not erroneous. It was conceded that the licence disqualification periods imposed upon the appellant were excessive and that the disqualification periods ordered by this court should be 'significantly less'.
Appellate sentencing principles
44 Both appeals are governed by the well-known and well-established principles with respect to discretionary judgments set out by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. Those principles need not be repeated here. It is sufficient to say that the grounds of appeal alleged inferred error. The appellant must demonstrate that the result is so unreasonable or plainly unjust as to enable the inference to be drawn that there has been a failure to properly exercise the sentencing discretion.
Merit of the appeal against the total effective sentence: CACR 15 of 2013
45 The totality principle has two limbs. The appellant relies on the first limb only. That provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would have been arrived at by simply adding up all the terms appropriate to the individual offences: Roffey v The State of Western Australia [2007] WASCA 246 [24], [26].
46 The appellant's overall offending was multifaceted and serious. There is no question that it warranted a significant term of imprisonment.
47 The most serious offences were the indictable fraud offences. They involved a prolonged course of dishonest conduct lasting over a year and caused each complainant significant financial loss and expense. Notwithstanding these things, the losses were not as great as other cases of this type and the appellant was not in one of the recognised positions of trust to the complainants.
48 While bearing in mind all of the offences in the s 32 notice, including the fraud offences, the breach of bail and reckless driving offences involved considerable criminality. The appellant fled the jurisdiction and remained absent for approximately 5 1/2 years. The reckless driving offence was constituted by the appellant driving through a red light at speed in a built-up area, giving rise to an obvious risk of harm to other road users. It was committed in circumstances where the appellant knew he was subject to a bench warrant, and he drove in the manner he did to evade being arrested.
49 I have not ignored the child pornography offences, but it must be said that they were not as bad as others this court or the court below have dealt with. It is pertinent to reiterate that his Honour may not have imposed terms of immediate imprisonment had he been dealing with these offences alone.
50 The appellant's personal circumstances were not favourable. He has a previous, albeit short, history of dishonest behaviour. He has a relevant prior traffic record. It cannot be said that the offending is a temporary aberration. Moreover, the appellant has no real insight into his offending behaviour and blames others for it. His conduct shows that he has a contemptuous attitude to the law. Issues of personal as well as general deterrence were significant factors, as his Honour rightly recognised. The appellant's counsel submitted that the effluxion of time since the commission of the offences was a mitigating factor. That submission cannot be accepted given that the delay in sentencing the appellant was caused by his decision to abscond from this jurisdiction. The only mitigating factor of any real substance was the appellant's pleas of guilty. Those pleas were not accompanied by any remorse. Indeed, as the appeal against conviction showed, he sought, unsuccessfully, to resile from most of them.
51 In the end, the critical question is whether the total effective sentence was excessive having regard to the appellant's overall criminality.
52 In assessing the overall criminality, the cumulation of some of the sentences was necessary to reflect the multifaceted and serious nature of the appellant's offending. However, with great respect to his Honour, the total effective sentence of 5 years 2 months' imprisonment did not bear a proper relationship to the appellant's overall criminality viewed in its entirety and having regard to all of the circumstances. It was, in my view, more than was required to satisfy all of the recognised sentencing objectives including, in this case, punishment, retribution and deterrence. The total sentence of imprisonment was unjust and unreasonable.
53 Implied error having been established, this court is in a position to re-sentence the appellant. As there is no challenge to the individual sentences, they will not be disturbed.
54 On indictment 727 of 2012, I would set aside the order for cumulacy with respect to the sentence imposed on count 3 and order that the sentence be served concurrently with count 2. Thus the total sentence for indictment 727 of 2012 will be 22 months' imprisonment.
55 I would set aside the order for cumulacy with respect to the sentence imposed on count 5 and order that each of the terms of imprisonment with respect to indictment 810 of 2012 be served wholly concurrently with the sentences imposed on indictment 727 of 2012.
56 I would not interfere with the orders for cumulacy in respect of the s 32 notice.
57 Thus the total effective sentence to be served by the appellant is 3 years and 10 months' imprisonment. All other orders made by his Honour, including orders for parole eligibility and backdating will be undisturbed.
Merit of the appeal against the driver's licence disqualification: CACR 16 of 2013
58 As I have already noted, the respondent has conceded this appeal. While that concession does not bind this court, it should be accepted.
59 The learned sentencing judge accumulated the licence disqualification periods for the s 32 notice offences of:
(a) driving under fine suspension on 27 July 2006 (charge 24): 18 months' disqualification;
(b) reckless driving on 21 March 2007 (charge 28): 3 years' disqualification; and
(c) driving under fine suspension on 21 March 2007 (charge 30): 2 years' disqualification.
60 The offence of driving while disentitled is set out in s 49 of the Road Traffic Act 1974 (WA). At the time of the offending, the maximum penalty for driving under a licence suspension order made under s 19 or s 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) was a fine between $200 and $1,500 and 12 months' imprisonment and the court may impose a disqualification from holding or obtaining a driver's licence for a period of 3 years: Road Traffic Act, s 49(3)(b) and s 49(3b). This is to be contrasted with the maximum penalty for driving contrary to a court ordered driver's licence disqualification. The maximum penalty for a first offence was a fine of not less than $400 or more than $2,000 and 12 months' imprisonment and, for a subsequent offence, a fine of not less than $1,000 or more than $4,000 and 18 months' imprisonment. In either case, the offender must 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(3)(a) and s 49(3a). Section 49(3c) required any period of disqualification ordered under subsections (3a) or (3b) to be served cumulatively on any other period of disqualification to which the person may then be subject.
61 Having regard to the fact that of the two offences the maximum penalty for driving contrary to a court ordered disqualification is greater, such an offence would, generally speaking, be viewed as more serious than driving contrary to a licence suspension order.
62 At the time the reckless driving offence was committed, the maximum penalty for a first offence of reckless driving was a fine of $1,000 or imprisonment for 9 months. The minimum mandatory driver's licence disqualification period was 6 months: Road Traffic Act, s 60(3).
63 A driver's licence disqualification is an additional penalty to any other penalty imposed for the offence in question. The question of whether a disqualification is imposed (for offences where a disqualification is not mandatory) and its length are matters of discretion. The exercise of the discretion is subject to the relevant statutory minimum (if any) and maximum limits. The same considerations that inform the sentencing of the offender generally will inform the question of whether a disqualification should be imposed and, if so, its length. Any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, protection of the public, deterrence, retribution and reform.
64 The appellant in his written submissions referred the court to a number of single judge appeal decisions and decisions of this court to demonstrate that the individual disqualifications and the total effective disqualification were excessive. It is unnecessary to list them. Almost all of them do not involve an appeal against the driver's licence disqualification imposed at first instance. The cases are of limited assistance. Having said this, the range of penalties imposed in the cases referred to by the appellant indicate that the disqualifications imposed here, and the total disqualification, are excessive.
65 The licence disqualification imposed upon the appellant for the offence of driving under fine suspension on 27 July 2006 was not accompanied by any other offending. The imposition of a disqualification was appropriate, principally to deter the appellant from further offending. However, a disqualification for 18 months for a first offence in circumstances where there was no other offending was manifestly excessive. I would impose a licence disqualification of 12 months.
66 With respect to the licence disqualification order for reckless driving, I have already set out the relevant facts of that offence, noting, in particular, that the appellant drove in the manner that he did in order to avoid apprehension by the police. It was, however, the appellant's first offence under the Road Traffic Act for reckless driving. The disqualification period of 3 years was, having regard to all of the circumstances, unjust and unreasonable. I would impose a licence disqualification of 2 years.
67 The licence disqualification period for the offence of driving under fine suspension associated with the reckless driving charge was also, in my opinion, manifestly excessive. I would impose a disqualification of 18 months, this being the appellant's second offence of this type.
68 I would accumulate the disqualifications so that the total disqualification period to be served is 4 years 6 months. In my opinion, a disqualification of that length properly reflects the appellant's overall conduct.
69 It follows from what I have said that the total disqualification period imposed by his Honour infringed the first limb of the totality principle.
70 I would allow the appeal against the driver's licence disqualifications imposed by his Honour. I would substitute a total effective licence disqualification of 4 years 6 months.
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