Wilson v Director of Public Prosecutions for Western Australia
[2021] WASC 404
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WILSON -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2021] WASC 404
CORAM: SOLOMON J
HEARD: 8 NOVEMBER 2021
DELIVERED : 22 NOVEMBER 2021
PUBLISHED : 24 NOVEMBER 2021
FILE NO/S: SJA 1067 of 2021
BETWEEN: FELICIA JAYNE WILSON
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ATKINS
File Number : MH 2269 of 2020, MH 2270 of 2020, MH 4319 of 2020, MH 4321 of 2020, MH 4323 of 2020, MH 4325 of 2020, MH 4327 of 2020
Catchwords:
Criminal law - Appeal against sentence - Leave to appeal - Where offender convicted of stealing a motor vehicle and multiple counts of driving without authority - Whether the learned sentencing magistrate erred in failing to give the appellant credit for pleas of guilty - Whether it was open for the learned sentencing magistrate to suspend sentence imposed - Whether the total effective sentence imposed infringed the first limb of the totality principle - Resentencing - Conditional suspension of sentence
Legislation:
Criminal Appeals Act 2004 (WA), s 10(3)
Criminal Code (WA), s 378
Misuse of Drugs Act 1981 (WA), s 6(2)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c), s 49(3)(d)
Road Traffic (Vehicles) Act 2012 (WA), s 4(2)
Sentencing Act 1995 (WA), s 9AA, s 9AA(5), s 39, s 39(3), s 62(3), s 83, s 84A, s 84B, s 130
Result:
Application for extension of time to appeal granted
Leave to appeal granted on ground 1
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Bui v The State of Western Australia [2019] WASCA 186
Cross v The State of Western Australia [2018] WASCA 86
Fogg v The State of Western Australia [2011] WASCA 11
Jackman v Davidson [2019] WASC 364
Lemmon v Walker-McLean [2019] WASC 475
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Roberts v The State of Western Australia [2014] WASCA 239
Strahan v Brennan [2014] WASC 190
SOLOMON J:
The appellant is a 26-year-old woman. With no previous criminal transgressions, in early 2018 the appellant was fined $200 under s 49(1)(a) and s 49(3)(d) of the Road Traffic Act 1974 (WA) (RTA) for driving a motor vehicle without authority. A short time later, the appellant was fined $300 under s 6(2) of the Misuse of Drugs Act 1981 (WA) for possession of cannabis.
Although it appears the appellant had no further brush with the law for over 18 months, those relatively minor convictions did not serve to motivate the appellant to utilise her undoubted potential for the good of herself and others, including her two young children. Rather, they foretold of a tragic spiral of events such that the appellant is now in prison and brings this application in which she seeks to appeal the sentence of immediate imprisonment of 12 months imposed on 6 August 2021 in the Magistrates Court in Mandurah.[1]
[1] Transcript, Western Australia Police v Wilson, Magistrates Court of Western Australia, 6 August 2021, 13.
For the reasons set out below, I have found that the learned magistrate erred in imposing the 12-month sentence of imprisonment and I have resentenced the appellant so that she will henceforth conditionally avoid imprisonment. The court thereby affords the appellant a further, and quite possibly final, opportunity to do what she says she wishes to do - restore her life as a mother and as a productive member of civil society.
Background
The relevant background which led to the appellant's prison sentence may be briefly summarised.
On 12 and 13 August 2019 the appellant again committed an offence in breach of s 49 of the RTA by driving without a licence which had been suspended for the failure to pay fines. She was, again, fined for those offences.
On 23 September 2019 the appellant again offended by driving without authority under s 49 of the RTA. In addition, the appellant on that occasion was driving an unlicensed vehicle and thus committed a further offence under s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA). On 19 November 2019 in the Magistrates Court in Rockingham the appellant was fined $600 for those offences and she was disqualified by that court from holding a driver's licence for 9 months.
On 5 October 2019 the appellant yet again drove without authority and committed an offence under s 49 of the RTA. On 27 November 2019 in the Magistrates Court, she was fined $400 for that offence and was again disqualified from holding a driver's licence for 9 months cumulative.
On 23 November 2019 the appellant again committed an offence under s 49 of the RTA by driving without authority, this time, in defiance of the court ordered disqualification imposed by the Magistrates Court on 19 November 2019.
On 27 December 2019, the appellant again drove a motor vehicle without authority and thus committed a further offence under s 49 of the RTA and indeed it appears drove the vehicle for a period thereafter. In addition, the car used by the appellant belonged to a friend who had consented to the appellant's use of the car but then requested it back for her own use and thereby withdrew the consent. The appellant did not return the car and it remained with the appellant until it was impounded by the police. The appellant was charged with stealing a motor vehicle under s 378 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
The two offences of 27 December 2019, stealing a motor vehicle and driving a motor vehicle without authority (MH 2269/20 and MH 2270/20) came before the Magistrates Court on 5 June 2020. It is not disputed that the appellant pleaded guilty to the charges MH 2269/20 and MH 2270/20 at the first opportunity.
In summary, by the time MH 2269/20 and MH 2270/20 came before the Magistrates Court on 5 June 2020, the appellant had accrued the following offences under s 49 of the RTA for driving without authority:
No. Offence Date Result Date Charge No Offence 1. 15 November 2017 16 January 2018 AR 52/18 RTA, s 49(3)(d) 2. 12 August 2019 11 September 2019 MA 3741/19 RTA, s 49(3)(d) 3. 13 August 2019 9 October 2019 MA 4178/19 RTA, s 49(3)(d) 4. 23 September 2019 19 November 2019 RO 7034/19 RTA, s 49(3)(c) 5 5 October 2019 27 November 2019 MA 5013/19 RTA, s 49(3)(c) 6. 23 November 2019 10 December 2019 RO 8087/19 RTA, s 49(3)(c)
In the Magistrates Court on 5 June 2020, the facts in relation to MH 2269/20 and MH 2270/20 were outlined by the prosecution as follows:
At about 3.10 pm on 27 December 2019, the accused was at the victim's address in Pinjarra. She returned the victim's vehicle, a Mazda 3A, registration 1GGO828 back to her, as she had borrowed it earlier in the day. The accused asked the victim if she could use the vehicle for the rest of the day, but the victim said no as she needed to use it herself. The accused still had the car keys with her, and as the victim walked inside her address, the accused reversed the vehicle out of the driveway and left towards Camp Road.
Between 27 December 2019 and 19 January 2020, the victim made numerous attempts to contact the accused, whereby the accused replied to her, stating she just needed the vehicle a bit longer. The vehicle was impounded by police on 19 January 2020 in the possession of the accused and her partner for driving offences. At that time, the accused participated in a video record of interview.
And then on 7 May, she participated in a record of interview and made admissions to keeping possession of the vehicle after consent had been withdrawn by the victim.[2]
[2] Transcript, Western Australia Police v Wilson, Magistrates Court of Western Australia, 5 August 2021, 2 ‑ 3.
The duty lawyer representing the appellant then explained:
[The appellant's] version is slightly different in that - so she had been staying on and off with this person, the victim, and the victim would lend her the car at a fee. So she was, essentially, renting it out to her, and she would bring it back. And that had been going on for quite some time. On this occasion, Ms Wilson says she brought the car back. She says she was given permission to use it again but only till the next day, and she accepts that she didn't return for some time after that. And that was - she was then arrested with the vehicle. That's because she was kicked out and didn't have anywhere to stay.
So the driving offences on her records, that you will see have accumulated very quickly over a very short period of time, as well as this one have arisen because she was living out of, at one stage, her own vehicle.[3]
[3] ts 5 August 2021, 4 - 5.
The duty lawyer went on to explain in relation the appellant's circumstances:
She's only 25 years of age. She has two children aged seven and five who live with her. She has had unstable accommodation for a couple of years and has struggled with mental health issues and methamphetamine use since she witnessed a murder, a quite traumatic incident, a couple of years ago. So she has really been struggling since then.[4]
[4] ts 5 August 2021, 5.
The learned magistrate imposed a Community Based Order (CBO) under pt 9 of the Sentencing Act 1995 (WA). In her remarks, the learned magistrate said:
Can I - and I make it clear, the authorities say, if you keep driving under suspension, court order suspension, then the - you go to jail because it sends a message to others who do it as well …
I think I will do it - impose the order for both offences by way of personal and general terms. I've taken into account the plea of guilty and the accused - the offender's age and her personal circumstances, being a mother of two young children. So the order will be for a period of eight months.[5]
[5] ts 5 August 2021, 8 - 9.
Subsequently, on 4 August 2020, and then again on 14 August 2020 the appellant committed offences under s 49 of the RTA by driving without authority. Importantly, those offences were committed during the currency of the CBO thus triggering the operation of s 62(3) and s 130 of the Sentencing Act, by virtue of which a court may sentence the offender in any manner the court could if it had just convicted the person for that offence. Thus, as the appellant offended during the currency of the CBO, she was liable to be resentenced at the discretion of the Magistrates Court for MH 2269/20 and MH 2270/20.
The offences of August 2020 came before the Magistrates Court on 6 August 2021. By that time further offences under s 49 of the RTA of driving without authority (once on 20 December 2019 and twice on 22 December 2019) had come to light. In respect of the offence committed on 20 December 2019, the appellant was ultimately arrested and released on bail. That is of significance because the appellant subsequently failed to meet a condition of her bail which was a further matter before the learned magistrate on 6 August 2021.
Each of the driving offences of December 2019 and August 2020 also involved the appellant committing speeding offences. In addition, the appellant had failed on a number of occasions to meet the supervision conditions of the CBO and, as noted above, had failed on one occasion to meet a bail condition.
All in all, including MH 2269/20 and MH 2270/20 for which the appellant was to be resentenced, there were 15 charges before the magistrate on 6 August 2021. The appellant pleaded guilty to all of them.
By that time, the appellant had spent 29 days on remand.
It was submitted in mitigation on behalf of the appellant that her most recent offence for driving without authority was in August 2020 and thus 12 months had passed since the appellant had committed such an offence. It was further said on behalf of the appellant:
This offending has come about mainly because of her homelessness. She became homeless about two years ago when she was evicted from her accommodation … she has had issues in relation to domestic violence in the relationship, and the situation was that she was living out of her car for some period of time. So on some of the occasions that she was driving, it was because that was her home, but it's accepted that, clearly, she has flouted the court order there.
You've also heard, your Honour, that she has suffered from that golden staph infection, which she said she contracted about five years ago. Fortunately for her, it has now gone, so the restrictions that were in place there preventing her from being able to access a lot of services are no longer in place, and that is obviously a positive thing for her … she has had some struggles with her methamphetamine use, and that has been an issue for about four or five years and has escalated to the point where she's using intravenously.
She's still very young though; she's only 26 years of age, so she definitely has youth as a factor. She has two children who are aged five and seven now. They were put into DCP care in November of last year. Again, because of the infection that she had, she wasn't even able to have supervised contact with them to start with, and obviously hasn't had any contact while she has been in custody. But that is now her priority. She said to me that she has had a lot of time to think about the consequences of her actions and who it affects, and mainly, it's her children that it's affecting because now they don't have their mother around.
She told me that she got dragged into a toxic circle. She wants to get out of that circle, and she's the only one who can do that. She needs to stop using drugs, which just by virtue of being remanded in custody, she has now had three weeks without that. It's accepted that she did have some opportunities through the community-based order. I think her life was just too chaotic for her to take that up and to engage with it fully, and I think that's what has led to the breaches of the community-based order.[6]
[6] ts 6 August 2021, 9.
In her sentencing remarks the learned magistrate said the following:
[T]here are 15 charges I have to deal with. Two additional ones because you have breached a community ‑based order, which has now expired, and you fall to be resentenced for a driving under suspension and also a steal motor vehicle charge. I have heard the facts in relation to all the driving under suspensions, excess speed and breach of bail. I have received the facts on the breach of the community-based order and the underlying offences.
You're entitled to credit for the pleas. Some of them are quite late in the day; others you have entered at a relatively early time. In relation to prosecution notices 4319 and 4320, those matters were listed for trial. You had them early listed and you entered pleas of guilty today in relation to those.
Whilst a trial date was - a second trial date, I'm still going to give you a five per cent overall reduction in penalty because you still have reduced or taken the burden off the prosecution in proving the charges before court. So as far as those are concerned, 4319 and 4320, five per cent overall reduction in penalty. 4321 to 438, you enter pleas of guilty on the fifth appearance before court, and I will give you 15 per cent overall reduction in penalty.
In relation to 839 and 840 and the breach of bail, 1265, I give you full credit for the guilty pleas. You entered both sets of pleas on the second appearance before court in relation to the breach of the community‑based order. You did not attend on the first date, but on the second appearance, after you had been given time for legal advice, you entered your plea, so I'm going to give you full credit.
Now, I have heard the facts in relation to everything.[7]
[7] ts 6 August 2021, 10 - 11.
The learned magistrate then dealt with the offences for which she imposed a global fine. They included the breach of bail and CBO conditions and the speeding offences.
The learned magistrate then dealt with the offences of driving without authority and the two offences for which the appellant was to be resentenced:
Then I come to the question of the driving under suspension matters. On each of the driving under suspension matters, there is a nine-month cumulative disqualification to be imposed.
That's in relation to each of them. And so that's on 439, your driving under suspension, 20 December 2019, the two driving under suspensions, 22 December 2019, driving under suspension, 4 August 2020, driving under suspension 14 August 2020. Nine months on each, all cumulative so they all run on top of each other. Your community-based order has now expired, and so I have to look again at the steal motor vehicle and another driving under suspension between 27 December 2019 and 19 January 2020.
I accept and respect the submission that this is not your fifth driving under suspension on its own, but the fact remains that you have repeatedly ignored the disqualifications imposed upon you for your own reasons. Those reasons included homelessness. They included health reasons. They included domestic violence and drugs use.
It was your choice to get involved in the drugs, and you have, to your credit, now that you have been on remand for a length of time, cleaned up your act, and I respect that, but when you repeatedly disregard court orders, as you have done, the only appropriate penalty, as far as I'm concerned, is a term of imprisonment.
I also note that you have failed to comply with the court order, the community-based order, for the reasons that have been given, including the fact that your health at the time meant that you could not attend in person for your supervision, but the fact remains that you're also not compliant in the alternatives that were given to you by your Community Corrections officer.
The steal motor vehicle charge is a pretty low charge, as far as I'm concerned. To have access to someone's vehicle, to return that vehicle, they tell you the need the vehicle - you don't have the decency to leave that vehicle with that person after they've lent it to you, but you drive off, and at the time, you drive off under suspension. That is shameful on your part and shows that you have no regard whatsoever for the friend who lent you that car. That is despicable.
As far as you're concerned, I've reached the conclusion, having regard to the number of offences before court and noting what Supreme Court has said, noting, of course, that normally, when it's Supreme Court, they say there need to be five previous convictions before we look at imprisonment - as far as I'm concerned, you have reached and surpassed the term of imprisonment.
You were given the option of a community-based order, you failed to comply and you have reoffended subsequently. So I've reached the conclusion that the only appropriate penalty in relation to driving under suspension and the steal [motor] vehicle charges are terms of imprisonment.
So the following will be imposed: In relation to steal motor vehicle, taking into account the fact that you have been on remand according to Community Justice for 29 days, I have taken that into account when reducing the overall terms of imprisonment to make sure that the terms of imprisonment properly reflect the level of the offending and your disregard of court orders. So in relation to the steal motor vehicle, there is two months imprisonment, and that is the head sentence.
On each of the driving under suspension matters, there is five months imprisonment. Can I tell you - I'm going to tell you that when it comes to driving under suspension, the normal level of terms of imprisonment for an offence of that nature are between seven and 10 months, but on each of these, you are going to be imprisoned for five months. Prosecution notices 4319 and 4325 will be cumulative.
That makes a total term of imprisonment of 12 months, and in considering that level of imprisonment, I have taken into account, as I have said, the time that you have been on remand and the fact that you are now clean, and I have reconsidered everything that I have been told in relation to you to decide whether or not a term of imprisonment should be suspended, and, as far as I'm concerned, I'm positively satisfied it should not be suspended; therefore, it's immediate term of imprisonment, one year, eligible for parole.
The level of the term of imprisonment I have reduced to take into account the time that you have been on remand. Therefore I'm not backdating today, I have a choice under the Sentencing Act to either backdate or take into account time, and I have taken into account that time.[8]
[8] ts 6 August 2021, 11 - 13.
The appellant's counsel provided a helpful summary of the components of the sentence of 12 months immediate imprisonment in a table form as follows:
Charge No. Offence Offence Date Penalty MH 2269/20 Steal motor vehicle 27 December 2019 - 19 January 2020 2 months (head sentence) MH 2270/20 No authority to drive 27 December 2019 - 19 January 2020 5 months MH 4319/20 No authority to drive 20 December 2019 5 months (cumulative) MH 4321/20 No authority to drive 22 December 2019 5 months MH 4323/20 No authority to drive 22 December 2019 5 months MH 4325/20 No authority to drive 04 August 2020 5 months (cumulative) MH 4327/20 No authority to drive 14 August 2020 5 months
The appellant advances three grounds of appeal under pt 2 div 2 of the Criminal Appeals Act 2004 (WA).
Extension of time
First however, the appellant requires an order to extend the time. The application was filed on 14 September 2021. Section 10(3) of the Criminal Appeals Act requires an appeal to be commenced within 28 days of the relevant decision (here 6 August 2021), unless the Supreme Court orders otherwise. It follows that an order is required to permit the appellant to commence her appeal on 14 September 2021.
Ms Natalie Sinton, a solicitor with the Legal Aid Commission of Western Australia, who also appeared as counsel for the appellant on the appeal, affirmed an affidavit in support of the application to extend time. Ms Sinton explained that legal aid was granted to her on Wednesday, 25 August 2021. A request for the transcript was made the following Monday, 30 August 2021 but it was not received by Ms Sinton until 8 September 2021. Ms Sinton was on leave over 9 and 10 September 2021. Ms Sinton was able to contact the appellant in custody on 14 September 2021, at which time the appellant instructed Ms Sinton to lodge the application. The application was lodged on the same day.
The respondent did not object to the order sought.
In my view, the explanation for the delay is adequate. Moreover, as explained below, in my view the prison sentence imposed on the appellant on 6 August 2021 involved error.
In the circumstances, I have concluded that the interests of justice warrant an order permitting the appellant to commence the appeal on 14 September 2021.
The Criminal Appeals Act also requires leave to appeal for each ground of appeal. I shall accordingly deal with the question of leave in respect of each ground.
Grounds of appeal - Ground 1
The appellant's first ground of appeal alleges error in the failure to reduce the sentences imposed in relation to MH 2269/20 and MH 2270/20 pursuant to s 9AA of the Sentencing Act. It was contended by the appellant and conceded by the respondent that s 9AA applies to a resentencing under s 130. In my view, the contention and the concession are correct.
Section 9AA provides that if a person pleads guilty to a charge for an offence, the court may reduce the sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. The earlier the plea is entered, the greater the discount may be, to a maximum of 25%.
The learned magistrate's sentencing remarks are set out above. It is plain and accepted by the respondent that the learned magistrate made no express reference to the plea of guilty for MH 2269/20 and MH 2270/20. As noted above, it was also common cause that the pleas of guilty for those offences were made at the first available opportunity. In the ordinary course, that would be expected to attract the maximum discount of 25%.
It is also accepted that the learned magistrate erred by failing to refer to any reduction of the sentence. Section 9AA(5) requires any reduction and the extent of any such reduction to be stated in open court.
In Roberts v The State of Western Australia,[9] the Court of Appeal (Martin CJ, Buss, Mazza JJA) considered an appeal against a sentence of 2 years and 6 months imprisonment. One aspect of the appeal was whether the sentencing judge had taken account of the offender's plea of guilty in arriving at the sentence imposed.
[9] Roberts v The State of Western Australia [2014] WASCA 239.
The Court of Appeal observed (footnotes omitted):
As we have noted, the State concedes, quite properly, that the sentencing process reveals express error by the sentencing judge in two respects. First, the sentencing judge made no reference to any reduction in sentence as a consequence of Mr Roberts' pleas of guilty at the earliest reasonable opportunity, nor was any reference made to a reduction in sentence appropriate to reflect the fact that Mr Roberts volunteered information to police which led to his conviction on the first three charges brought against him.
However, as the plurality recently observed in Kentwell v R, not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven an appellate court's jurisdiction to intervene. Rather, that jurisdiction will only be enlivened if the error is material.The question therefore is whether the errors conceded by the State were material to the sentencing process.
The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges. However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact. In relation to that question, as Steytler P observed in H v Western Australia:
[T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.
The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.[10]
[10] Roberts v The State of Western Australia [46] - [49].
After discussing other factors, the Court of Appeal concluded that the sentencing judge's error was material.
In my respectful view, the following principles may be distilled from the Court of Appeal's observations:
(a)the failure to take account of a guilty plea reflects an error in the exercise of the sentencing discretion;
(b)the failure to refer to the effect of a guilty plea will ordinarily be an indication that a sentencing judge has overlooked it;
(c)if the error is material to the sentencing process, then an appellate court's jurisdiction to intervene is enlivened, but not otherwise; and
(d)the inference that the sentencing judge failed to take account of the guilty plea may be reinforced by an analysis of the sentence itself.
In addition to the failure to refer to the guilty plea or any reduction, counsel for the appellant referred to other factors that she argued point to the learned magistrate having overlooked the appellant's early plea of guilty. The magistrate made express and specific reference to the reductions for each of the other offences, suggesting that MH 2269/20 and MH 2270/20 were overlooked. In addition, the comparison of MH 2269/20 and 2270/20 with the other like‑offences for which the same sentence was imposed suggests that no reduction was applied for MH 2269/20 and MH 2270/20.
Counsel for the respondent pointed out correctly that the mere omission of an express reference to the reduction, albeit an error, was not determinative. If it was apparent that in substance the learned magistrate had taken account of the early guilty plea then that was sufficient to dispose of the appeal.
The respondent contended that I should infer that the learned magistrate did in fact take account of the early guilty plea. That was said to be apparent from the sentences imposed for MH 2269/20 and MH 2270/20. MH 2270/20 was committed in circumstances where the motor vehicle was stolen and it was apparent that the unauthorised driving was not limited to one day but was ongoing. Therefore, MH 2270/20 should have attracted a greater sentence than the other offences of driving without authority. It follows that as the same sentence was imposed, the learned magistrate must have applied a reduction. The respondent submitted that this was also apparent from the 2-month sentence imposed for MH 2269/20 because that was a particularly lenient sentence even though the learned magistrate had admonished the appellant in relation to this offence for her 'low', 'shameful' and 'despicable' conduct.
In assessing the learned magistrate's remarks, I am mindful that allowance must be made for a necessary level of inexactitude in remarks made in a busy court of summary jurisdiction delivering ex tempore judgments.
As Martin CJ explained in Strahan v Brennan:[11]
[11] Strahan v Brennan [2014] WASC 190.
Magistrates Courts are summary courts. The very nature of the word summary requires and connotes that the magistrates are to conduct their business with expedition and with a degree of informality appropriate to the disposition of the large volume of cases which are brought before those courts every day. Consistently with that notion s 31(1) of the Magistrates Court Act expressly provides that:
31.Judgments, content of -
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.[12]
[12] Strahan v Brennan [89] - [90].
Even allowing for that approach, I have respectfully concluded that the learned magistrate overlooked and did not take account of the appellant's early guilty plea for MH 2269/20 and MH 2270/20.
First, as the Court of Appeal has observed, the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.
Secondly, although the learned magistrate referred generally to the guilty 'pleas' after referring at the outset to all 15 charges, she went on to identify the reduction appliable to each of the other charges but made no mention at all of the guilty pleas or the reduction for MH 2269/20 and MH 2270/20 when those offences ought to have attracted the biggest reduction, and as counsel for the appellant pointed out, was probably the most significant mitigatory factor available to the appellant. Moreover, in her sentencing remarks for MH 2269/20, the learned magistrate made express reference to taking into account the time spent by the appellant on remand but made no reference to the early plea of guilty.
Thirdly, the same sentence of 5 months was given for MH 2270/20 as the other offences of driving without authority. The point is all the more starkly illustrated in relation to charge MH 4319/20 where the learned magistrate allowed just a 5% reduction because the plea of guilty came late in the process. I do not accept the respondent's contention that a greater sentence could be expected of MH 2270/20 because the car was stolen in circumstances where the learned magistrate made no comment to that effect, and the appellant was separately sentenced for the stealing offence. There is some force in the respondent's observation that MH 2270/20 had an ongoing element and therefore may have been expected to attract a higher penalty. However, the offences of August 2020 were committed in light of the previous offences and, significantly, in breach of the CBO. In those circumstances it might equally be expected that the offences of August 2020 would have attracted a greater sentence.
Moreover, if the learned magistrate had taken account of the guilty plea for MH 2270/20 without making express reference to it, then the starting point must have been considerably higher. When the reduction for the plea of guilty is added back in to each of the offences of driving without authority, it would mean that MH 2270/20 attracted a greater penalty than any of the others. For the reasons I have explained, it is not apparent that this should necessarily have been the case, and indeed, there is at least some basis to suggest that it would attract a lower penalty than the same offences committed in the aggravating circumstances of a breach of a CBO.
Ultimately, such matters turn on speculation about unexpressed evaluations and calculations in the learned magistrate's mind. The fact is that the learned magistrate said nothing of these suggested evaluations. On its face, the imposition of a 5-month sentence for each of the offences of driving without authority is more suggestive of the learned magistrate having simply overlooked the early guilty plea for MH 2270/20. And in circumstances where the learned magistrate made no mention of the plea of guilty for MH 2270/20 and set out specific reasoning and calculations but not the ones speculatively suggested by the respondent, the more obvious conclusion is that she simply overlooked the guilty pleas for MH 2269/20 and MH 2270/20.
The respondent also pointed to the 2-month sentence for MH 2269/20 which it characterised as lenient which suggested it must reflect the deduction for the early plea of guilty. Again, this is speculation as the learned magistrate said nothing of this. In any event, it may well be that the sentence was on the lenient side. But in the personal circumstances of the appellant, the 2-month sentence of immediate imprisonment for an offence that she had never previously committed does not in my view reflect a sentence that is so lenient it necessarily reflects an unexpressed reduction.
The respondent also suggests that I should exercise caution in an analysis based on comparison of sentences for individual offences. That is because, the respondent contends, it may be inferred that the learned magistrate was in effect working backwards from the potential aggregate of the sentences to accommodate the totality principle. That accommodation may have involved adjusting the individual sentences in a way that distorts the ability to draw conclusions from comparing one individual sentence with another.
I am not prepared to draw that inference on the basis of the learned magistrate's comments. The learned magistrate made reference to 'reducing the overall terms of imprisonment' to 'reflect the level of the offending'.[13] However, in my view that is not a sufficient indication to suggest she undertook the analysis proffered by the respondent but chose not to express it. Again, the more obvious inference is that her Honour overlooked the guilty pleas for MH 2269/20 and MH 2270/20.
[13] ts 6 August 2021, 12.
For the reasons I have explained, I have concluded that the learned magistrate erred in failing to have regard to the appellant's guilty pleas in respect of MH 2269/20 and MH 2270/20. In my view, that oversight was material as it would very likely have impacted on the length of the sentences. Indeed, the respondent accepted that if I came to the conclusion that the learned magistrate had failed to take account of the early guilty pleas for MH 2269/20 and MH 2270/20 'it would be very difficult to say that wouldn't be a material error'.[14]
[14] Transcript, Wilson v Director of Public Prosecutions, Supreme Court of Western Australia, 8 November 2021, 60.
Accordingly, I shall grant leave and allow the appeal in respect of Ground 1.
It was also accepted by the respondent that if I came to the view that the sentencing for MH 2269/20 and MH 2270/20 was a material error, then the appellant is to be resentenced for all the sentences for which terms of imprisonment were imposed by the learned magistrate on 6 August 2021.
Other grounds
In respect of the appellant's second ground (Ground 2) and third ground (Ground 3) generally, it is well established that an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing magistrate. It can only intervene if the sentencing magistrate has made an express or implied material error of fact or law.
Before turning to the detail of Ground 2 and Ground 3, it is appropriate to note that both grounds require some observations regarding the nature of the sentences customarily imposed for repeated offences of driving without authority under s 49 of the RTA.
In Lemmon v Walker-McLean,[15] his Honour Tottle J undertook a review of sentences imposed on offenders convicted of multiple accounts of driving while under court ordered suspension. It is not necessary for me to repeat his Honour's review, which I respectfully and gratefully adopt.
[15] Lemmon v Walker-McLean [2019] WASC 475.
It is sufficient to observe that multiple convictions of driving while under suspension, even with strong mitigating factors, routinely attract sentences of immediate imprisonment of between 4 and 9 months and sometimes longer, generally up to 12 months.
Tottle J was dealing with convictions for the seventh, eighth, ninth and tenth offences under s 49 of the RTA. The appellant's circumstances in that matter also presented with strong mitigating factors, some of which were not dissimilar to this matter. Tottle J upheld the appeal, reducing a sentence of immediate imprisonment of 18 months to a sentence of immediate imprisonment of 12 months.
In my respectful view, the position is neatly summarised by McGrath J in Jackman v Davidson (footnotes omitted):[16]
The offence ... was Mr Jackman's fifth offence of driving without authority or while disqualified contrary to s 49(1)(a) and (3)(b) or (3)(c) of the Road Traffic Act. A term of immediate imprisonment is ordinarily imposed for repeat offenders with a discernible range of 6 - 8 months' imprisonment evident in appellate cases.[17]
[16] Jackman v Davidson [2019] WASC 364.
[17] Jackman v Davidson [55].
I turn now to consider the specific errors of law asserted in respect of Ground 2 and Ground 3.
Ground 2
The appellant's second ground of appeal alleges that in all of the circumstances, it was not open to the learned magistrate to be satisfied that it was not appropriate to suspend the sentence imposed in this case and that by imposing immediate imprisonment, the learned magistrate erred.
The magistrate's conclusions were briefly expressed. Her Honour simply said:
I have reconsidered everything that I have been told in relation to you to decide whether or not a term of imprisonment should be suspended, and, as far as I'm concerned, I'm positively satisfied it should not be suspended; therefore, it's immediate term of imprisonment, one year, eligible for parole.[18]
[18] ts 6 August 2021, 13.
It was not disputed that the offences warranted a sentence of imprisonment. The issue on appeal is whether it was open to the learned magistrate to conclude that it was inappropriate to suspend or conditionally suspend the sentences of imprisonment.
Under s 39 of the Sentencing Act, a court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
In substance, the appellant's submission is that when account is taken of all the mitigating factors, the only conclusion open to the learned magistrate was that a term of immediate imprisonment was not the only appropriate sentencing disposition. Put another way, the question is whether it was open to the learned magistrate to conclude that it was inappropriate to suspend, or conditionally suspend, the sentences of imprisonment she intended to impose.
The hierarchy of sentences available to the magistrate is set out in s 39 of the Sentencing Act. The relevant operation of that section was explained by McLure P in Fogg v The State of Western Australia as follows:
Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed.[19]
[19] Fogg v The State of Western Australia [2011] WASCA 11[8].
Her Honour went on to explain:
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision-maker has to be positively satisfied that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option.[20]
[20] Fogg v The State of Western Australia [9]-[10].
Relying on those passages in Fogg, the Court of Appeal in Cross v The State of Western Australia observed that in borderline cases, different types of sentences may be reasonably open and in such a case the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error.[21] It is for the appellant to satisfy the court that the learned magistrate's judgement that suspension is not appropriate, was a conclusion that was not reasonably open.
[21] Cross v The State of Western Australia [2018] WASCA 86 [36] (Buss P, Mazza, Beech JJA).
In light of the matters I have set out above regarding the range of sentences customarily imposed, in my view it cannot be said that it was not open to the learned magistrate to be satisfied that suspension was not appropriate. Having regard to the relevant sentencing principles and all the circumstances of the offence and the appellant, in my view it was open to the learned magistrate to conclude that the repeated nature of the offences and the need for general and personal deterrence outweighed the mitigating factors and made inappropriate any sentence other than immediate imprisonment. Accordingly, I decline to grant leave in respect of Ground 2.
Ground 3
The appellant's third ground of appeal alleges error in that the imposition of the total effective sentence infringed the totality principle. The total effective sentence was 12 months’ imprisonment.
The relevant aspect of the totality principle is 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: Moody v French [2008] WASCA 67 at [65]; Bui v The State of Western Australia [2019] WASCA 186 at [14].
In Lemmon v Walker-McLean, Tottle J summarised the relevant principles on appeal as follows (footnotes omitted):
(a)The principle of appellate restraint means that an appellate court can only intervene if the appellant demonstrates either [an] express or implied material error of fact or law - an appellate court cannot intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge.
(b)A ground of appeal that asserts a breach of the totality principle asserts the existence of implied error. The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
(c)In determining whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to offences of that nature, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.
(d)The guidance afforded by roughly comparable cases is flexible rather than rigid. Caution is needed when considering past cases to assess sentencing patterns. Each case is sensitive to its own particular facts. There is no single correct sentence.[22]
[22] Lemmon v Walker-McLean [4].
The appellant does not suggest that the 2-month sentence for stealing a motor vehicle was unjust or otherwise reflected error. It follows that the asserted error is reflected in the 10-month effective aggregate sentence for driving without authority. The learned magistrate was dealing with six offences of driving without authority against the background set out in paragraph [11] above of a further six previous offences.
Having regard to the sentences customarily applied, as set out above, and the circumstances of the appellant, in my view it cannot be said that the sentence was plainly unjust, even having regard to the appellant's personal circumstances.
For that reason, I decline to grant leave in respect of Ground 3.
Resentencing
In light of the conclusions that I have reached, it falls to this court to re-sentence the appellant for the offences the subject of the terms imprisonment and imposed by the learned magistrate on 6 August 2021.
The circumstances regarding the offences and the personal circumstances of the appellant are canvassed above and need not be repeated. Those circumstances include the 29 days spent by the appellant on remand.
Given the somewhat complicated chronology of the offending, it is useful to set out, in table form, a list of the offences in chronological order, including not only the offences for which the appellant is to be resentenced but also her prior convictions for driving without authority. Those additional convictions are not aggravating factors, but they are relevant. That is because the appellant's history of reoffending demonstrates that past sentencing dispositions have not deterred her from continuing to offend. There is plainly a need to give significant weight to the need for personal deterrence.
Table of offences - chronological order
| Offence date | Offence | Charge |
| 15 November 2017 | No authority to drive | AR 52/18 |
| 12 August 2019 | No authority to drive | MA 3741/19 |
| 13 August 2019 | No authority to drive | MA 4178/19 |
| 23 September 2019 | No authority to drive | RO 7034/19 |
| 5 October 2019 | No authority to drive | MA 5013/19 |
| 23 November 2019 | No authority to drive | RO 8087/19 |
| 20 December 2019 | No authority to drive | MH 4319/20 |
| 22 December 2019 | No authority to drive | MH 4321/20 |
| 22 December 2019 | No authority to drive | MH 4323/20 |
| 27 December 2019 to 19 January 2020 | Steal motor vehicle | MH 2269/20 |
| 27 December 2019 to 19 January 2020 | No authority to drive | MH 2270/20 |
| 4 August 2020 | No authority to drive | MH 4325/20 |
| 14 August 2020 | No authority to drive | MH 4327/20 |
In my view, given the need for general and personal deterrence in light of the repeated nature of the offending, a term of imprisonment is warranted. As I have already noted, the appropriateness of a term of imprisonment was not in dispute. Putting to one side the question of suspension of the sentence of imprisonment, I respectfully adopt the comments of the learned magistrate, save that pursuant to s 9AA of the Sentencing Act, the sentences for MH 2269/20 and MH 2270/20 should be reduced to one and a half months and four months imprisonment respectively. The reductions are for the appellant's pleas of guilty at the earliest reasonable opportunity and reflect a reduction from two months to one and a half months for MH 2269/20 and a reduction from five months to four months for MH 2270/20.
Those sentences reflect an effective term of imprisonment of 11½ months. I shall reduce the term by 3½ months to reflect the time already spent by the appellant in custody since 6 August 2021. I also make a parole eligibility order under s 89(1) of the Sentencing Act.
The sentence shall be as follows (which is then reduced by 3½ months):
Charge No. Offence Offence Date Penalty MH 2269/20 Steal motor vehicle 27 December 2019 - 19 January 2020 1.5 months (head sentence) MH 2270/20 No authority to drive 27 December 2019 - 19 January 2020 4 months MH 4319/20 No authority to drive 20 December 2019 5 months (cumulative) MH 4321/20 No authority to drive 22 December 2019 5 months MH 4323/20 No authority to drive 22 December 2019 5 months MH 4325/20 No authority to drive 04 August 2020 5 months (cumulative) MH 4327/20 No authority to drive 14 August 2020 5 months
Section 39(3) of the Sentencing Act relevantly requires me to be satisfied that it is not appropriate to impose a suspended imprisonment and order the release of the offender, or impose a conditional suspended imprisonment and order the release of the appellant, before imposing an immediate term of imprisonment.
The history of the appellant's personal circumstances and the history of her offending provide a strong indication that it would not be appropriate to order an unconditional suspension of the term of imprisonment. In addition, the appellant has provided a personal letter to the court which indicates that she has ongoing medical and counselling needs that she wishes to maintain in order to ensure her progress. Those admissions fortify my conclusion that it would not be appropriate to order an unconditional suspension of the term of imprisonment.
I turn therefore to consider whether I can be satisfied that it is not appropriate to impose a conditional suspension of imprisonment under pt 12 of the Sentencing Act.
I consider that the following matters are relevant to that consideration:
(a)the appellant was relatively youthful, aged between 24 and 25 at the time of the commission of the offences;
(b)the appellant's offending occurred against a background of homelessness, health issues and domestic violence;
(c)the offences were largely committed within short periods or bursts of time, which no doubt reflected the difficult circumstances confronting the appellant during those periods; and
(d)by the time the appellant came to be sentenced for these offences in August 2021, it had been almost exactly 12 months since the commission of her last offence.
Perhaps most significantly, in addition to the 29 days on remand, the appellant has now spent over three months in prison. By all accounts she has made some progress during that time, particularly in relation to her drug addiction. Indeed, counsel for the respondent, whilst maintaining that the magistrate on 6 August 2021 was correct in being satisfied that suspension of the prison sentence was not appropriate, conceded that the situation was now different and that it would be open to this court to be satisfied that suspension of the sentence was appropriate.
In all the circumstances I am satisfied that it is appropriate to impose a conditional suspension of the sentence of imprisonment under pt 12 of the Sentencing Act.
Accordingly, I shall order that the sentence of imprisonment be suspended for a period of 8 months subject to the standard conditions in s 83 of the Sentencing Act and a programme requirement under s 84A and a supervision requirement under s 84B.
In respect of the programme requirement under s 84A, the court considers that the appellant will benefit from assessments and appropriate treatment under s 84A(2) by a medical practitioner, psychologist and social worker to address issues in relation to substance abuse, educational, vocational and personal development programs. The appellant would also benefit from a supervision requirement under s 84B so that she is regularly monitored in the community and receives regular counselling.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
24 NOVEMBER 2021
8
0