Wright v Gettings

[2016] WASC 426

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WRIGHT -v- GETTINGS [2016] WASC 426

CORAM:   TOTTLE J

HEARD:   7 DECEMBER 2016

DELIVERED          :   7 DECEMBER 2016

FILE NO/S:   SJA 1054 of 2016

BETWEEN:   DAVID MURRAY WRIGHT

Appellant

AND

CONSTABLE GETTINGS
First Respondent

DETECTIVE SERGEANT BAZDEN
Second Respondent

CONSTABLE ROMAN
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G LAWRENCE

File No  :PE 52741 of 2015, PE 52742 of 2015, PE 52743 of 2015, PE 52744 of 2015, PE 52745 of 2015, PE 3241 of 2016, PE 3242 of 2016, PE 6237 of 2016

Catchwords:

Criminal law - Appeal against sentence - Aggravated reckless driving - Where appellant entered plea of guilty at the earliest opportunity - Whether appellant entitled to full 25% reduction of sentence pursuant to s 9AA of the Sentencing Act 1995 (WA) where there is a mandatory minimum - Where mandatory minimum sentence for offence a sentencing judge must impose the mandatory minimum - Total effective sentence not manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)
Road Traffic Act 1974 (WA), s 60(5)
Sentencing Act 1995 (WA), s 9AA, s 9(3)

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Ms K C Cook

Second Respondent       :     Ms K C Cook

Third Respondent         :     Ms K C Cook

Solicitors:

Appellant:     In person

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent       :     Director of Public Prosecutions (WA)

Third Respondent         :     Director of Public Prosecutions (WA)

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

Casbolt v The State of Western Australia [2005] WASC 41

Wilson v The State of Western Australia [2010] WASCA 82

TOTTLE J: 

(This judgment was delivered extemporaneously on 7 December 2016 and has been edited from the transcript.)

Introduction

1. On 31 March 2016 the appellant was sentenced in the Magistrates Court at Perth to a total effective sentence of 2 years and 6 months' immediate imprisonment.  The sentences were imposed for 11 offences to which the appellant had pleaded guilty at an earlier hearing on 3 March 2016.  The sentence was backdated to commence on 8 January 2016.  The appellant was made eligible for parole and a total of 2 years' disqualification from driving was imposed to be served cumulatively to prior unserved disqualification periods.

2. In the appendix to these reasons I set out in tabular form the offences and specific sentences imposed.  For the purposes of this introduction it is sufficient to say that the focus of the appeal is the sentences of imprisonment imposed in respect of four offences of aggravated reckless driving (the relevant circumstances of aggravation in each case being that the appellant drove a vehicle to escape pursuit by police officers) and one offence of stealing a motor vehicle and driving recklessly. 

3. Two of the offences of aggravated reckless driving were committed on 29 October 2015, as was the offence of stealing a motor vehicle and driving recklessly.  The other aggravated reckless driving offences were committed on 29 December 2015 and 7 January 2016.  The magistrate imposed the statutory minimum penalty of 6 months' imprisonment for each of the aggravated reckless driving offences and a term of 12 months' imprisonment for the offence of stealing a motor vehicle and driving recklessly.  His Honour ordered that the sentences imposed for aggravated reckless driving offences committed on 29 October 2016 be served concurrently and that the other sentences be accumulated.

4. The appellant applies for leave to appeal on the ground that the magistrate failed to reduce the sentences imposed for the aggravated reckless driving offences by 25% in recognition of the guilty pleas in accordance with what the appellant contends was the proper application of s 9AA of the Sentencing Act 1995 (WA).

Application for an extension of time within which to commence appeal

1. The appeal was commenced by notice dated 20 July 2016.  The last date for appealing was 27 April 2016.  The appellant has sworn an affidavit explaining that the delay in commencing the appeal was due to delays and difficulties encountered in obtaining legal advice.  In the light of that explanation, I consider that his time for commencing this appeal should be extended to allow it to be brought.

Circumstances of the offending

1. The appellant accepted the circumstances of the offending outlined by the prosecution.  For the purposes of this appeal it is not necessary to recite the full detail of the offending.

Offending on 29 October 2015:  charges 52741/2015 - 52745/2015

1. At 11.52 pm on 29 October 2015 the appellant was seen by police officers driving a stolen motor vehicle east along Adelaide Terrace in Perth.  The vehicle had been stolen by someone other than the appellant on 21 October 2015.  Police activated emergency lights in an attempt to stop the vehicle as the appellant had driven through a red light.  The appellant initially appeared to pull over but then accelerated away along Adelaide Terrace.  The police activated the sirens in their vehicle as well as emergency lights and a pursuit ensued.  The appellant drove the vehicle across the Causeway on to the Great Eastern Highway.  The appellant travelled east and entered the intersection at Kooyong Road against a red traffic light.  Police estimated the speed of the stolen vehicle as it entered the junction was 80 km per hour.  The driver of another vehicle at the intersection was required to take evasive action.  At 11.55 pm police aborted the pursuit.  The appellant was last seen driving the stolen vehicle east on Great Eastern Highway.

2. At 11.59 pm on the same evening police officers observed the appellant driving the same stolen vehicle at excessive speed north on Tonkin Highway in Embleton.  In an attempt to stop the vehicle police activated emergency lights and sirens, but the appellant failed to stop.  A pursuit took place.  In the initial stages of the pursuit the appellant drove the stolen vehicle at speed in the emergency lane of Tonkin Highway, drove along the Tonkin Highway at 140 km per hour, and drove through the intersection of Reid Highway and Malaga Drive at approximately 120 km per hour, resulting in the stolen vehicle becoming airborne for approximately 20 metres.  The pursuit continued with the appellant driving west along Reid Highway at speeds that reached 160 km per hour.  The appellant drove the stolen vehicle on the incorrect side of the road in order to negotiate a roundabout, forcing a vehicle travelling in the opposite direction to brake heavily in order to avoid a collision.  The pursuit ended in Trigg when the appellant drove the stolen vehicle into a cul-de-sac and police officers were able to block the exit and arrest the appellant.

Offending on 18 December 2015:  charge 1422/2016

1. The appellant had been released on bail granted by Magistrate Court and was due to appear on 18 December 2015 but he failed to appear.

Offending on 29 December 2015:  charge 3240/2016

1. On 22 December 2015 at 5.30 pm the appellant went to Woolworths in Spearwood and stole groceries with an estimated value of $800.  The appellant's explanation was that he sold the items in order to make money.

Offending on 29 December 2015:  charge 6237/2016

1. On 29 December 2015 police observed a silver Toyota Prado vehicle a service station on East Parade in East Perth.  Police officers suspected that the driver of the vehicle might be intoxicated and, using emergency lights and siren, signalled for the driver to stop the vehicle.  The appellant was driving the vehicle and he did not stop but accelerated away from the police at speed.  The appellant drove the vehicle through a red traffic light at the intersection of East Parade and Brown Street before turning the vehicle west on the Graham Farmer Freeway on-ramp and in doing so overtook several other vehicles without indication and drove along the median strip.  The appellant drove through the Graham Farmer Tunnel and swerved his vehicle repeatedly across three lanes of traffic to escape the police vehicle that was pursuing him.  Police continued to follow the appellant's vehicle but were unable to keep up with it and aborted the pursuit.  Police used CCTV footage from the service station to identify the appellant as the driver of the vehicle.

Offending on 7 January 2016:  charges 3241/2016 - 3243/2016

1. At 11.24 pm the appellant was driving a vehicle along the Mitchell Freeway near Mounts Bay Road in Perth.  Police officers used emergency lights to signal to the appellant that he was to stop but he did not do so and swerved the vehicle through three lanes of traffic on to the Mounts Bay Road exit.

2. Police pursued the vehicle being driven by the appellant for some 34 minutes through several suburbs.  In the course of this pursuit, the appellant drove the vehicle through red traffic lights on seven occasions; drove on the incorrect side of the road against the flow of traffic; stopped at a petrol station to allow passengers to leave the vehicle and, at the same time, obtained fuel for which he did not pay; drove with the headlights of the vehicle turned off; and drove on the incorrect side of a roundabout.  When the appellant's vehicle reached Midland, police used a tyre deflation device which punctured one of the tyres of the vehicle and that caused it to crash.

The magistrate's sentencing remarks

1. The magistrate had a pre-sentence report and had the benefit of a plea in mitigation made by counsel on the appellant's behalf.  The plea was supported by a letter from the appellant's elderly parents and a letter from the appellant.  In their letter it appears that the appellant's parents referred to the appellant's struggle over many years to overcome his addiction to illicit drugs.  Following the plea in mitigation, the magistrate retired in order to consider the appropriate sentences.

2. The magistrate commenced his sentencing remarks with a reference to the fact that the appellant had pleaded guilty at an early point in the proceedings.  He then observed that the four aggravated reckless driving offences were the subject of a mandatory minimum sentence of imprisonment of 6 months' imprisonment.  As I have noted, the magistrate imposed the minimum mandatory sentence of 6 months' imprisonment for each of the aggravated reckless driving offences and ordered that the sentences imposed for the offences committed on 29 October 2015 be served concurrently, but that the sentences for the offences committed on 29 December 2015 and 7 January 2016 be accumulated.

3. Relevantly for the purposes of the appellant's ground of appeal, the magistrate observed that because the sentences imposed in respect of the aggravated reckless driving offences were the mandatory minimum sentences, a reduction of 25% in recognition of the appellant's early guilty pleas could not be applied to reduce those terms (ts 17.3).

4. The magistrate's consideration of the appropriate sentence for the offence of stealing a motor vehicle and driving recklessly committed on 29 October 2015 involved identifying a sentence of imprisonment of 24 months as a starting point.  Mindful of the need to avoid double punishment for the 'driving recklessly' element of this offence, his Honour adjusted the sentence to 18 months and then applied a further reduction of 25% to that term to reflect the appellant's guilty plea before making a further reduction of 1 1/2 months in recognition of other factors, in particular the appellant's prospects of rehabilitation.  This process resulted in a sentence of 12 months.

5. The magistrate ordered that the terms of imprisonment of 6 months for each of the three aggravated failure to stop offences be served concurrently with the sentences of imprisonment for the aggravated reckless driving offences on the basis that they were 'part and parcel' of the same episodes of criminal conduct.  In the course of the magistrate's sentencing remarks, his Honour referred on two occasions to the need to ensure that the total effective sentence was not crushing.

Ground of appeal

1. As formulated by the appellant, the ground of appeal is as follows:

   The magistrate did not properly take into account my early plea of guilty to fast track my cases as I pleaded guilty at the earliest opportunity and was expecting a sentence discount of 25%.

2. A court must not grant leave to appeal in respect of a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act 2004 (WA).

Principles applicable to sentencing appeals

1. The principles applicable to sentencing appeals are those stated by the Court of Appeal in Wilson v The State of Western Australia [2010] WASCA 82 [2], and are as follows:

   The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

   1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.

   2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.

   3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).

   4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).

   5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

Disposition of the appeal

1. The appellant's ground of appeal does not have a reasonable prospect of succeeding because it was not open to the magistrate to reduce the terms of imprisonment imposed by him for the aggravated reckless driving offences below the statutory minimum of 6 months in the manner that the appellant contends he should have done.

2. This is because if a statute specifies a minimum penalty for an offence, a court must impose at least the minimum penalty so specified: see s 9(3) of the Sentencing Act 1995 (WA).

3. In the case of the offence of the reckless driving, the effect of s 60(5) of the Road Traffic Act 1974 (WA) is that a court sentencing a person for an offence of reckless driving committed in any of the circumstances of aggravation referred to in s 49AB(1)(c) of that Act must sentence the person to a term of imprisonment of at least 6 months. The reckless driving offences committed by the appellant were committed in circumstances of aggravation. It was not permissible for the magistrate to reduce the applicable mandatory minimum sentences of 6 months' imprisonment in recognition of the appellant's guilty plea.

4. In the appellant's written submissions he stated his belief that the magistrate's starting point of 24 months for the offence of stealing and driving recklessly committed on 29 October 2015 was excessive given that the appellant was not the principal offender but the receiver of the stolen vehicle.  Although this submission did not find its way into a formal ground of appeal, had it done so, I would have concluded that it did not have a reasonable prospect of success.  As counsel for the respondent pointed out in her written submissions, a submission that a sentencing judge failed to arrive at an appropriate starting point does not assert an error in the exercise of the sentencing discretion as it is the actual sentence imposed that is relevant:  Casbolt v The State of Western Australia [2005] WASC 41 [3] - [5].

5. I will make two further observations.

6. First, it appears from the magistrate's sentencing remarks that he was very much alive to what the respondent's counsel described as the 'overarching significance' of the totality principle and structured the sentences accordingly.  I accept the respondent's submission that the total effective sentence was commensurate with the overall criminality of the appellant's conduct.  The aggravated driving offences were serious examples of a serious offence.

7. Secondly, in his submissions the appellant stated that he was assured by his lawyer that he would receive a 25% reduction in the sentences that the court would otherwise impose in recognition of his guilty pleas.  Irrespective of whether that was the advice the appellant received, it appears the evidence against the appellant was overwhelming and he had no alternative other than to plead guilty.  Even though the appellant has not succeeded in this appeal, on any view, his interests were best served by his guilty pleas.

8. I will make the following orders:

   1.The appellant's time for bringing this appeal be extended to 20 July 2016.

   2.Leave to appeal be refused.

APPENDIX

Charge	Date	Offence	Max Penalty	Penalty Imposed
52741/2015	29.10.15	Aggravated reckless driving to escape pursuit by police s 60(1) RTA	Mandatory min: 6 months' imp Max 2 years' imp	6 months' imp Cumulative
52742/2015	29.10.15	Steal motor vehicle and drive recklessly s 378(2)(a) Code	8 years' imp	12 months' imp Cumulative
52743/2015	29.10.15	Aggravated failure to stop when directed s 44 RT (Administration) Act	2 years' imp	6 months' imp Concurrent
52744/2015	29.10.15	Aggravated reckless driving to escape pursuit by police (by speed 155 km or more) S 60(1a) RTA	Mandatory min 6 months' imp Max 2 years' imp	6 months' imp Concurrent
52745/2015	29.10.15	Aggravated failure to stop when directed s44 RT (Administration) Act	2 years' imp	6 months' imp Concurrent
1422/2016	18.12.15	Breach of bail undertaking	$10,000 fine/3 years' imp	$500 fine
3240/2016	22.12.15	Stealing s 378 Code	7 years' imp	$500 fine
6237/2016	29.12.15	Aggravated reckless driving to escape pursuit by police S 60(1) RTA	Mandatory min 6 months imp Max 2 years' imp	6 months' imp Concurrent
3241/2016	07.01.16	Aggravated failure to stop when directed s44 RT (Administration) Act	2 years' imp	6 months' imp Concurrent
3242/2016	07.01.16	Aggravated reckless driving to escape police pursuit s 60(1) RTA	Mandatory min 6 months' imp Max 2 years' imp	6 months' imp Cumulative
3243/2016	07.01.16	Stealing s 378	7 years' imp	$500 fine
Total effective sentence		Two years six months' immediate imprisonment