Wintle v Dean

[2012] WASC 165

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WINTLE -v- DEAN [2012] WASC 165

CORAM:   MARTIN CJ

HEARD:   30 APRIL 2012

DELIVERED          :   30 APRIL 2012

FILE NO/S:   SJA 1127 of 2011

BETWEEN:   JOSHUA NOEL WINTLE

Appellant

AND

PAUL ANTHONY DEAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T McINTYRE

File No  :MH 3568 of 2011, MH 3569 of 2011, MH 3570 of 2011

Catchwords:

Criminal law - Appeal against sentence - Dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) - Plea of guilty - 'Serious' instance of dangerous driving, involving property damage - Fine imposed by magistrate exceeded maximum monetary penalty for first dangerous driving offence - Licence suspension pursuant to s 105 of the Sentencing Act 1995 (WA) appropriate

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 41
Road Traffic Act 1974 (WA), s 61
Sentencing Act 1995 (WA), s 105

Result:

Appeal allowed
The sentence imposed on the appellant by Magistrate McIntyre on 7 November 2011 with respect to conviction for dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) be set aside
The appellant pay a fine of $600
The appellant's motor vehicle driver's licence be suspended for a period commencing 7 November 2011 and ending 30 April 2012

Category:    D

Representation:

Counsel:

Appellant:     Mr D A Fort

Respondent:     Ms M C Dorn

Solicitors:

Appellant:     Fort Legal

Respondent:     State Solicitor for Western Australia

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

Nil

MARTIN CJ: 

(This judgment was delivered extemporaneously on 30 April 2012 and has been edited from the transcript.)

1. This is an appeal against the sentence imposed upon the appellant for dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) (Road Traffic Act).  I take the circumstances which gave rise to the offence, to which the appellant pleaded guilty, from the transcript of the proceedings before the magistrate on 7 November 2011 and, in particular, the address of the prosecutor, who outlined the facts to the magistrate and which were not disputed by the appellant.

2. At 5.30 pm on 26 June 2011, the appellant drove his Holden Commodore west on Rockford Street in Mandurah near the junction of Peel Street.  He lost control with the road surface while he was travelling down Rockford Street, leaving burn‑out tyre marks of about 20 metres in length.

3. As a result of the loss of control, the vehicle mounted the front lawn of Unit 1, 10 Rockford Street, Mandurah narrowly missing a telegraph pole and then colliding with a 1 metre high garden bed retaining wall, causing bricks to crack.  At the time of the incident, the road conditions were damp as it had been raining most of the day.  Having caused damage to the retaining wall, the accused did not cause his vehicle to stop.  He did not wait long enough so that he could provide his name and address to the owner of the damaged property.

4. He drove off west along Rockford Street, again with his tyres losing traction.  When he was spoken to by police, he participated in a video record of interview.  During that video record of interview he stated that he was at Burswood Casino with a cousin at the time of the offence.  That statement was false.

5. As a result of those matters, the appellant was charged with three offences.  The first was that of wilfully misleading the person effecting the discharge of that person's duty under the Road Traffic Act 1974. The second was dangerous driving contrary to s 61 of the Road Traffic Act, although that was as a consequence of the original charge being downgraded from reckless to dangerous driving.  The third charge was failing to stop after being involved in an incident where property was damaged.

6. In respect of the first and third of those charges, the appellant was fined $500.  In respect of the second charge, that is the charge of dangerous driving, the appellant was fined $1,000 and disqualified from holding or obtaining a motor driver's licence for 15 months.

7. Before turning to the grounds of appeal, I will refer to the appellant's personal circumstances.  He was 24 years of age at the time of the offence.  He has been in continuous employment as a fly‑in, fly‑out heavy duty mechanic in a position that he had held for a number of years prior to appearing before the magistrate.  He does, however, have a prior record of offending.  The most significant offence for present purposes is one of driving under the influence of alcohol, committed in April 2009, and another offence of driving with a blood alcohol level in excess of 0.08% committed in August 2007.  As a consequence of each of those convictions, the appellant was disqualified from holding a motor driver's licence.

8. There are many grounds of appeal. They include a ground to the effect that the fine imposed by the magistrate exceeded the maximum. That ground must be allowed. The maximum penalty available for a first offence of dangerous driving under s 61 of the Road Traffic Act is a fine of $800.  The magistrate imposed a fine which exceeded that maximum by an amount of $200, notwithstanding that there had been a plea of guilty at the earliest opportunity.

9. Because the magistrate plainly exceeded the jurisdiction conferred upon him, this court must set aside the sentence which he imposed for the offence of dangerous driving and resentence the appellant. That conclusion applies not only to the fine imposed by the magistrate but to the entire sentence imposed by the magistrate for dangerous driving, including the sentence of disqualification from holding a driver's licence, because the sentence must be regarded as a composite sentence. Once error in one part of the sentence is established, it follows that the court should exercise powers conferred by s 14 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) to resentence the appellant and exercise its own discretion with respect to the sentence properly imposed.

10. In those circumstances, it is unnecessary for me to consider the other grounds of appeal, but I would observe that there did appear to me to be some force in the argument that when considering the exercise of the power to disqualify conferred by s 105 of the Sentencing Act 1995 (WA) (Sentencing Act) in a circumstance in which the power to disqualify was not specifically provided in respect of the offence of which the appellant was convicted, it would have been appropriate for the magistrate to give notice to counsel appearing on behalf of the appellant that he was considering that course and thereby provide counsel with the opportunity to make submissions on that topic.

11. It also seems to me that there is some force in the argument that the magistrate proceeded to sentence on the basis that the appellant was probably intoxicated at the time of the offences, having regard to his prior record and the false statements that he made to police, and that his intoxication provided the explanation for his failure to stop and for his provision of false information to police, whereas in fact there is no evidence to sustain that inference or conclusion.  However, because the magistrate plainly exceeded the jurisdiction conferred upon him, it is unnecessary for me to rule upon those grounds while noting that they appeared to me to have some force.

12. It is therefore necessary for me to resentence the appellant.  The appellant's offence was a serious offence of dangerous driving, given the length of the skid marks at the scene, the associated factors of property damage, the leaving of the scene without reporting the accident and the false statement made to police.  Of course, the appellant has been separately punished in respect of the two other offences for which he was convicted and the penalty imposed with respect to dangerous driving cannot result in double punishment for those offences.  Yet it is appropriate, I think, to place the offence of dangerous driving in the context of the other offences committed by the appellant and, in particular, the risk which the appellant posed to the safety of the public, and his apparent disrespect for the law and authority.

13. Counsel for the appellant properly conceded that it is perhaps fortunate that no greater injury to property or person was suffered as a consequence of the events of 26 June 2011.  I do, however, take into account that the road was wet and the submissions put on behalf of the appellant before the magistrate to the effect that the occurrence came about as a consequence of inattention in a dangerous driving circumstance.  However, there is a limit to how much weight I can give to that submission, given the length of the tyre marks left on the road which clearly indicate the driving of a vehicle at a speed which was manifestly excessive given the road conditions which prevailed.

14. The sentence properly imposed upon the appellant should take account of the seriousness of the offence of dangerous driving, to which he pleaded guilty, but allowance must be made for the mitigatory effect of that guilty plea.  Accordingly, it seems to me that the financial component of the penalty to be imposed should be a fine in the amount of $600.

15. In relation to the use of the power to disqualify under s 105 of the Sentencing Act, the starting point for consideration of that issue is that s 61 of the Road Traffic Act does not provide for licence disqualification in the event of conviction of a first offence against that section and that this offence was the appellant's first conviction under that section.

16. However, s 105 of the Sentencing Act provides the court with a general power to impose disqualification of a motor driver's licence as part of the sentence imposed after conviction of an offence falling within the scope of that section, being defined by the section as a motor vehicle offence.  There is no doubt that the offence of which this appellant was convicted comes within the scope of that section.

17. The question therefore is whether this is a case in which the circumstances of the offence and the personal circumstances of the offender give rise to the conclusion that the power conferred by s 105 of the Sentencing Act should be exercised, notwithstanding that no specific provision is made for disqualification in respect of the offence of which the appellant was convicted.

18. When considering that question, I take into account my view that the offence committed by the appellant was a serious offence.  I take into account the risk to public safety which that offence represented and I take into account the lack of mitigation available from the appellant's prior record; that the appellant is not entitled to any credit or benefit because of his prior record, having regard to the two driving offences to which I have referred.

19. I, nevertheless, take into account, as I have already done, the plea of guilty provided by the appellant at the earliest opportunity. Balancing those competing considerations, it seems to me that this is an appropriate case for the exercise of the power of disqualification conferred by s 105 of the Sentencing Act.  I do, however, take into account the circumstances of the appellant and, in particular, his dependence upon his motor driver's licence for the satisfactory discharge of his employment obligations.

20. I note also that as a consequence of the sentence imposed by the magistrate, the appellant has been disqualified from driving for a period of five months and about three weeks. That seems to me to be a period that adequately reflects the seriousness of the offence of which he was convicted and sufficiently meets the requirements of both specific and general deterrence in relation to offences of this kind. Pursuant to s 41 of the Criminal Appeals Act, the court may order a sentence to have taken effect on a day prior to the date of the order.

21. Therefore, I propose to allow the appeal and set aside the sentence imposed by the magistrate in respect of the appellant's conviction of dangerous driving and instead of that sentence, to impose a fine of $600 and to order that the appellant be disqualified from holding or obtaining a driver's licence from 7 November 2011 until today's date, namely, 30 April 2012 on the basis that that sentence will take effect as if it had been imposed by the magistrate.

22. The sentence achieves an outcome whereby the disqualification already served by the appellant satisfies the sentencing objectives to which I have referred.