JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SMITH -v- HOPE [2001] WASCA 287
CORAM : McLURE J
HEARD : 27 AUGUST 2001
DELIVERED : 17 SEPTEMBER 2001
FILE NO/S : SJA 1069 of 2001
BETWEEN : GLENN ROBERT SMITH
Appellant
AND
TREVOR JAMES HOPE
Respondent
Catchwords:
Criminal law - Road traffic offence - Refusal of driver's licence under s 48 of the Road Traffic Act - Whether reasons for refusal adequate - Whether learner's permit valid - Whether a breach of s 49 of the Road Traffic Act if a valid learner's permit - Application of s 24 of the Criminal Code - Whether sentence manifestly excessive - Appropriateness of suspended sentence
Legislation:
Road Traffic Act 1974, s 48C, s 49(1), s 49(2)(a)(ii), s 50, s 75
Road Traffic Amendment Act No 39 of 2000
Sentencing Act 1995, s 6(4), s 39(3), s 76(2)
Result:
Appeal allowed in part
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms K E McDonald
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Colledge v The Queen [2001] WASCA 132
Commissioner of Police v Plumb, unreported; SCt of WA (Pidgeon J); Library No 6009; 20 September 1995
Denton v Bodycoat [2000] WASCA 424
Garrett v Nicholson (1999) 21 WAR 226
Horsman v Bishop [2000] WASCA 316
House v The Queen (1936) 55 CLR 499
Illich v Young [2000] WASCA 383
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Latham v The Queen [2000] WASCA 338
Maxwell v The Queen (1996) 184 CLR 501
McLachlan v August (1996) 16 WAR 75
Minear v Rudrum [2001] WASCA 10
Moursellas v Pharmaceutical Council (1992) 10 WAR 240
Pettit v Dunkley (1971) 1 NSWLR 376
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Chan (1989) 38 A Crim R 337
R v Dinsdale (2000) 115 A Crim R 558
Tihanyi v The Queen (1999) 21 WAR 377
(Page 3)
Case(s) also cited:
Babich v Illich [2000] WASCA 133
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Denton v Bodycoat [2000] WASCA 424
Dietrich v The Queen (1992) 177 CLR 292
Duffield v The Queen, unreported; SCt of WA; SCL No 950065; 14 February 1995
Eldridge v Bates (1989) 8 MVR 394
Eyre v The Queen, unreported; SCt of WA; SCL No 930149; 18 March 1993
Federal Commission of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Giris Pty Ltd v Federal Commission of Taxation (1969) 119 CLR 365
Hall v Woodthorpe, unreported; SCt of WA, Library No 2739; 5 November 1979
Horsman v Bishop [2000] WASCA 316
House v The King (1936) 55 CLR 499
Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Marshall v Spent [2000] WASCA 114
McKenzie v GJ Coles & Co (1988) 32 A Crim R 377
Meissner v The Queen (1995) 184 CLR 132
Milentis v Chitty (1989) 9 MVR 423
Mills v Veersma (1998) 20 WAR 328
Moulds v The Queen, unreported; SCt of WA; Library No 980147; 4 March 1998
Nevermann (1989) 43 A Crim R 347
Nobes v The Queen, unreported; SCt of WA; SCL NO 960486; 26 August 1996
O'Brien v Ostrowski [1999] WASCA 184
O'Brien v Ritchie [1999] WASCA 1027
Ottobrino v Espinoza (1995) 14 WAR 373
Pallot v Harrison, unreported; WASC (Owen J); Library No 950261
Pearce v Stanton [1984] WAR 353
Power v Jasharovski (1994) 19 MVR 337
Power v Steele (1992) 16 MVR 362
Public Service Board of NSW v Osmond (1986) 159 CLR 656
R v Civil Service Appeal Board [1991] 4 All ER 310
R v Liddington (1997) 18 WAR 394
(Page 4)
R v Murphy [1965] VR 187
R v Tait (1979) 46 FLR 386
Slater v Whitehead [1999] WASCA 69
Woods v Webb (1990) 11 MVR 95
(Page 5)
1 McLURE J: On 1 May 2001 the appellant was convicted in the Midland Court of Petty Sessions on a charge that on 27 April 2001 he drove a motor vehicle without the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence, contrary to s 49(1) and s 49(2)(a)(ii) of the Road Traffic Act 1974 ("the Act").
2 The appellant pleaded guilty to the charge and was sentenced to 6 months' imprisonment and disqualified from holding or obtaining a motor driver's licence for 12 months, cumulative.
Grounds of Appeal
3 The appellant was granted leave to appeal by Roberts-Smith J on 15 June 2001. The grounds of appeal are in the following terms:
"2. The Applicant to have leave to appeal against the conviction imposed on the Applicant on the abovementioned complaint on the grounds that notwithstanding the Applicant's plea of guilty, the learned Stipendiary Magistrate erred in fact and in law in convicting the Applicant of the offence charged in that;
a) as a matter of law, the Applicant was the holder of a valid motor drivers Learner's Permit and the appropriate charge should have been made pursuant to Section 50 of the Road Traffic Act 1974; and
b) the learned Stipendiary Magistrate failed to consider whether, in light of the facts before the Court, the defence of an honest and reasonable, but mistaken belief was available to the Applicant with respect to the validity or otherwise of the motor drivers permit held by the Applicant."
3. The Applicant have leave to appeal against the sentence imposed on the Applicant on the abovementioned complaint on the grounds that the learned Stipendiary Magistrate erred in fact and in law in sentencing the Applicant to six months imprisonment in that;
a) the sentence of 6 months imprisonment for driving without a licence imposed by the learned
(Page 6)
Magistrate was manifestly excessive and not the only penalty that could reasonably be imposed;
b) the Applicant believes he has only two prior convictions for driving without a licence, the last of which was in 1997;
c) the offence committed by the Applicant was at the lower end of the scale for driving without a licence;
d) the learned Magistrate failed to take into account as a mitigating factor the fact that the Applicant held, or believed on reasonable grounds that he held a current learners permit;
e) the learned Magistrate failed to take into proper account the circumstances surrounding the commission of the offence; and
f) the Applicant pleaded guilty to the offences at the first possible opportunity."
4 The appellant in his written and oral decisions relied on a further ground of appeal against conviction to the effect that a notice to the appellant under s 48(1) of the Act was invalid because of the failure of the Director-General (or his delegate) to give reasons for the decision as required by s 48(4). If that is correct, it follows that s 49(2)(a) of the Act does not apply.
Background and Facts
5 The only transcript of the Court of Petty Sessions hearing is of the plea in mitigation made on the appellant's behalf by duty counsel and the Magistrate's reasons for decision both delivered on 2 May 2001.
6 Mr Smith swore an affidavit in support of his appeal in which he deposed to the following matters:
(a) prior to December 2000, he was subject to a suspension of his driver's licence by the Fines Enforcement Agency for unpaid fines;
(b) in about early December 2000, he was advised by Repcol, a collection agency engaged by the Fines Enforcement
(Page 7)
Agency to collect unpaid fines, that as a result of the appellant beginning to pay off his fines, his licence suspension had been lifted and he was eligible to reapply for his driver's licence;
(c) on or about 7 December 2000, the appellant attended the East Perth Licensing Centre and passed an oral test to gain his learner's permit (the appellant is unable to read or write);
(d) he then completed a drug and alcohol test and after paying $67 was granted a learner's permit;
(e) a condition was imposed on the appellant that prior to gaining his driver's licence he had to complete a liver function test;
(f) following the granting of a learner's permit, he attended his doctor and had the necessary blood test;
(g) by letter dated 16 January 2001 served on the appellant on 14 February 2001, the driver assessment section of Transport issued a notice to the appellant refusing him a driver's licence ("the Refusal Notice");
(h) following receipt of the Refusal Notice, the appellant rang Transport and was told that he would need to complete a satisfactory liver function test before he could be issued with a driver's licence;
(i) on 5 February 2001, he received a replacement learner's permit and covering letter from Transport.
(k) his home and mobile telephones are only able to receive incoming calls.
7 The letter received by the appellant on 5 February 2001 from Transport concerned the splitting of the existing learning process into two phases and providing the appellant with a replacement permit which did not take effect until 5 February 2001. The Refusal Notice materially provides:
"NOTICE OF REFUSAL TO ISSUE A DRIVER'S LICENCE
Take notice that pursuant to the provisions of paragraph (b) of subsection (1) of Section 48 of the Road Traffic Act, I hereby refuse to issue you a driver's licence on the grounds that I have reason to believe that:
(Page 8)
You are addicted to alcohol or drugs to such extent as to render you a danger to the public when in control of a motor vehicle on a road.
I may review this decision subject to you producing a favourable medical report that you are not addicted to alcohol or drugs.
Should you be aggrieved by this decision, you may, within a period of thirty (30) days of the service of this Notice, apply by way of complaint to a Court of Petty Sessions for a review of this decision."
8 The respondent filed an affidavit of Jess Olsen, the police officer who conducted the prosecution case. Officer Olsen swore that his usual practice in relation to all pleas of guilty is to read the statement of facts provided with the police brief and that he would have done so in this case. The statement of facts annexed to Officer Olsen's affidavit is to the effect that inquiries revealed that the appellant's licence "was actually cancelled for medical condition from 14/2/01 for life". This seems to be the reason for the complaint referring to s 49(2)(a)(ii) instead of s 49(2)(a)(i) of the Act. The appellant does not pursue this discrepancy in the appeal. I have considered the matter and formed the view the error has not given rise to any miscarriage of justice. The appellant pleaded guilty to facts consistent with s 49(2)(a)(i) of the Act and was sentenced on the basis of a breach of that subparagraph (as appears from the Magistrate's reasons set out below).
9 It is apparent from the appellant's plea in mitigation that he was not engaged in a driving lesson in the company of an instructor at the time of the offence. The circumstances which resulted in the appellant driving were that he had suffered severe injuries in a workplace accident and was on workers compensation. He had received a letter from a creditor threatening legal action and wanted to discuss the matter with his workers compensation insurer. He rode his bicycle to the closest public telephone booth but it was out of order. He returned home and because of his chronic pain he drove his wife's car to a public telephone box some kilometres from his home.
10 The appellant also applied for leave to tender a letter dated 15 June 2001 from Dr Lawrence Ng concerning the appellant. I was informed from the bar table that the letter may contain an explanation for the results of a blood test which in turn may be relevant to the Director-General's
(Page 9)
refusal to issue a driver's licence. The merits or otherwise of the Director-General's refusal is not relevant to the appeal. Accordingly leave is refused.
11 The appellant's record in relation to vehicle-related offences, in the period to May 1997 is extensive. His record includes:
(a) two prior convictions for dangerous driving (1981, 1985);
(b) one prior conviction for refusing to provide a sample of his breath for analysis (1985);
(c) three prior convictions for driving a motor vehicle without the appropriate driver's licence (1979, 1985, 1993);
(d) a prior conviction for driving a motor vehicle under the influence of alcohol (1994);
(e) two prior convictions for driving a motor vehicle without the appropriate driver's licence whilst under suspension (1995, 1997).
The Magistrate's Reasons
12 The appellant's counsel asked the Court to consider a fine or suspended sentence. The Magistrate said:
"Well, the Supreme Court certainly doesn't talk that way, does it, in the matters it's dealt with? All right, thank you. Mr Smith, you stand convicted on your own plea that on the 27th of April this year, you drove a motor vehicle on Amazon Drive without being the holder of a WA driver's licence for that class of vehicle, and while legally [dis]entitled to hold one. In common parlance it's called driving under suspension.
Now I have a letter from you which I have read, and apparently it was - - the circumstances of the offence were that you were picked up at 8.30 am on Amazon Drive, Beechboro. You pulled into the verge. You had a ring on your mobile phone. The police pulled in behind you and asked you for your licence. The reason for you driving on that day was that your home phone only could receive incoming calls. You had to make an urgent call regarding your compensation insurance and you rode your push bike to the local phone box. The coin clot was broken. This call was urgent. You then rode home, got in your car and drove to Altone Road at the end of Amazon Drive, to
(Page 10)
use the phone box there, made your call and were heading home, and you were apprehended. Although I've heard that the phone call was urgent, that's the extent of the facts.
…
And the object of the Road Traffic Act is to impose substantial sanctions for people who treat court orders with contempt. And it's not in the case where you were treating a court order with contempt, but an order that you were not to drive a motor vehicle as your licence had been refused to issue on the 14th of February 2001.
And whilst I'm on your record, in 1995 you were convicted of driving under suspension for which you were fined. In 1997 you were again fined for driving under suspension. And I'm not here to re-sentence you for any of the earlier offences. I've only mentioned them to say that the previous impositions of moderate fined has had little or no deterrent effect upon you. But the - - as I was saying the object of the legislation is to impose substantial sanctions. And it's more than the court being affronted by disobedience to its order, but in this case of course, as I said it wasn't.
The other circumstances that have to be taken into account are your personal circumstances. And having regard to that, in my view a term of imprisonment is appropriate. The circumstances of the offence involved a deliberate decision on your part to drive to a telephone box, and there is nothing trippery about it. And there is absolutely no emergency."
Appeal Against Conviction
13 An appellate court will only allow an appeal against conviction after the entry of a plea of guilty in exceptional circumstances where it is seen to be necessary to prevent a miscarriage of justice. There is no closed list of circumstances which may be relevant to that question, but it will be necessary to demonstrate that there is a triable issue masked by the plea and that there was some reason to suppose the plea was not a true plea: Horsman v Bishop [2000] WASCA 316, per Murray J at [5].
14 The Full Court of this Court in Tihanyi v The Queen (1999) 21 WAR 377 adopted the statement of the law contained in the judgment of
(Page 11)
Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 510 - 511, where their Honours said:
"An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of guilty be entered. But otherwise an accused may insist upon pleading guilty."
15 It is an essential element of the offence in this case to which the appellant pleaded guilty that he drove "whilst legally disentitled to hold a driver's licence". The appellant says there are triable issues relating to that element masked by the plea of guilty and it is to that issue I now turn.
Learner's Permit
16 The first ground of appeal against conviction is that the appellant was the holder of a valid learner's permit and the appropriate charge should have been pursuant to s 50 of the Act.
17 Section 48C of the Act deals with learner's permits. Section 48C was extensively amended by the Road Traffic Amendment Act No 39 of 2000. The amendments to s 48C came into operation on 5 February 2001. Section 48C(1) materially provides:
(Page 12)
"(1 ) The Director General may, subject to such conditions as the Director General sees fit to impose, issue a permit authorising a person who has attained the prescribed age [16], to drive a motor vehicle of the class specified in the permit in the course of driving instruction by -
(2) …
(3) Subject to section 75(2) a permit issued under this section is valid for a period of 12 months from the date of issue unless it is sooner cancelled."
18 Section 75 of the Act deals with the effect of disqualification. In particular, s 75(2) provides:
(2) Where a person is disqualified from holding or obtaining a driver's licence -
(a) …
(b) …
(c) …
(d) by operation of this Act; or
(e) by a licence suspension made under the Fines, Penalties and Infringement Notices Enforcement Act 1994
any driver's licence or permit under section 48C held by that person shall by force of this section be suspended so long as the disqualification continues in force and during the period of suspension shall be of no effect … "
19 The word "disqualified" is not defined in the Act, although it appears in a number of sections (including s 27A, s 51(b) and (2) and s 54 of the Act).
20 Section 49 of the Act materially provides:
(Page 13)
"(1) Subject to this section and to sections 48C to 48F, every person who -
(a) drives a motor vehicle of a class for which he is not the holder of the appropriate, valid driver's licence; or
(b) …
on a road, commits an offence.
(2) Where -
(a) a person -
(i) having applied for a driver's licence and having been refused the issue of the licence under section 48;
(ii) having held a driver's licence that is cancelled under section 48 or of which the operation is suspended under that section;
(iii) having been disqualified from holding or obtaining a driver's licence, other than under a licence suspension order referred to in subparagraph (iv); or
(iv) having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under section 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994
commits, whilst still legally disentitled to hold a driver's licence, an offence against subsection (1)(a)."
21 Section 50 of the Act is in the follow terms:
"The holder of a permit issued under section 48C(1) shall not drive a motor vehicle except in conformity with any conditions endorsed on the permit under section 48C(2) and unless accompanied by a driving instructor with whom the holder is
(Page 14)
authorised to drive pursuant to section 48C(1) seated beside the holder or … "
22 For the appellant to succeed on his first ground of appeal, he must establish that his learner's permit was not suspended and if it was not suspended, that s 50 operates to the exclusion of s 49(1) in circumstances where a driver is the holder of a valid learner's permit although was not at the relevant time accompanied by a driving instructor as required by s 48C(1) of the Act. The penalty for a breach of s 50 is 6 PU. The penalty for a breach of s 49(1) is 6 PU for a first offence and 12 PU for a subsequent offence.
23 On a proper construction of the Act, the Director General's refusal to issue a driver's licence pursuant to s 48(1) of the Act results in a person being "disqualified from … obtaining a driver's licence … by operation of this Act" for the purposes of s 75(2) of the Act. As a result, the appellant's learner's permit under s 48C was suspended at the time of the offence. This construction is consistent with the scope and purpose of the Act. Section 48 deals with a person's inherent fitness to hold a driver's licence, whereas a learner's permit enables a person to acquire the knowledge and experience to obtain a driver's licence and assumes inherent fitness. It is to be expected that for so long as a person is disqualified from holding a driver's licence under s 48(1) of the Act any learner's permit would also be suspended for that period.
24 Even if I am wrong on the construction of s 75(2) of the Act, the holder of a valid learner's permit may be charged under s 49 of the Act in circumstances where the holder has driven but not in compliance with the conditions of the permit. That is, s 49(1) is made subject to the existence and compliance with the conditions of a learner's permit. If s 49(1) was not expressly made subject to s 48C of the Act, then a person would be in breach of s 49(1)(a) notwithstanding that he was the holder of a valid learner's permit and at the material time was complying with the requirements thereof. So, too, with drivers whose licences were issued overseas (s 48D), or elsewhere in Australia (s 48E and s 48F). On a proper construction of the Act, s 49 does not apply provided the relevant driving is duly authorised by any of s 48C to 48F of the Act. In circumstances where the act of driving is not authorised under s 48C because of non-compliance with the statutory and other requirements, a driver will commit an offence against s 49 and s 50 of the Act and the choice of charge will be a matter of prosecutorial discretion. For these reasons, ground of appeal 2(a) is without merit.
(Page 15)
Reasons for Refusal of Licence
25 The Director-General must give reasons for acting under s 48(1) and his decision is subject to review. Subsections 48(4) and (5) of the Act materially provide:
"(4) Where the Director-General decides to exercise the power conferred by subsection (1) ... the Director-General shall give to the person thereby affected notice in writing of that decision, setting out the Director-General's reasons therefore, and a person aggrieved by the decision may, within 30 days after the receipt of the notice, apply, by way of complaint, to a Court of Petty Sessions for a review of the decision.
(5) The court hearing an application under subsection (4) ... may, after hearing the parties, grant or dismiss the application, and, if granting the application, shall review the decision of the Director-General and make such order, including an order for the issue of a driver's licence, with or without conditions and limitations, as it thinks fit."
26 The appellant says the Director-General has failed to give adequate reasons and accordingly his decision is of no legal effect relying on Pettit v Dunkley (1971) 1 NSWLR 376 at 387 - 388; Garrett v Nicholson (1999) 21 WAR 226 at 248; McLachlan v August (1996) 16 WAR 75 at 79 - 81.
27 In particular, the appellant says the Director-General is required to give sufficient reasons to enable the appellant to know the issues to which the Director-General addressed his mind and whether he acted lawfully. The appellant (correctly) characterises the Refusal Notice as containing a recital of s 48(1)(b) of the Act.
28 The authorities establish that the adequacy of reasons has to be considered by reference to the relevant statutory context and the purpose or rationale for the requirement for reasons. The authorities relied on by the appellant (in the context of the exercise of judicial or quasi judicial powers) reveal that adequacy is determined by reference to the need not to undermine or render nugatory any statutory appeal (or prerogative review). However, the adequacy of the reasons in this case has to be considered in the context of a person having a right of review on the merits which is in substance and effect a right of hearing de novo. As to which see Builders Licensing Board v Sperway Constructions (Syd) Pty
(Page 16)
Ltd (1976) 135 CLR 616; Moursellas v Pharmaceutical Council (1992) 10 WAR 240; Commissioner of Police v Plumb, unreported; SCt of WA (Pidgeon J); Library No 6009; 20 September 1995.
29 In short, the minimum content of reasons will vary according to the purpose or rationale for the requirement and how that particular purpose can be achieved. In this case, the Director-General (or his delegate) has given notice of his decision (to refuse to issue a licence) and the reasons for his decision albeit by reference to the statutory criteria in subsection (1)(b). Those reasons are adequate in the statutory context of a right of review of the nature described.
30 If the Director-General had failed to comply with his statutory obligation to give reasons, then the consequences of that failure are to be determined on a proper construction of the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 - 391. The Court (McHugh, Gummow, Kirby and Hayne JJ) said at 390 - 391:
"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fulwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
31 It is unnecessary for me to address this issue in these proceedings and I decline to do so.
The Defence of Mistake
32 The appellant says that the defence of honest and reasonable but mistaken belief was available to the appellant "with respect to the validity or otherwise of the motor driver's licence permit held by the applicant".
(Page 17)
33 The evidence does not establish that the appellant had an honest and reasonable but mistaken belief as to his authority to drive on the occasion the subject of the charge. What evidence there is, is to the contrary. According to the appellant's counsel, he pleaded guilty because he was not engaged in a lesson (that is the driving was not authorised by his learner's permit) at the time of the offence. Further, the appellant informed the Magistrate, and it was repeated in his affidavit in the appeal, that he resorted to driving to a public telephone box some kilometres from his home to telephone an insurance company only after he had ridden his bicycle to a public telephone box near his house which was out of order.
34 However, the mistake relied on is as to the validity of the permit. Even accepting that the appellant had an honest and reasonable but mistaken belief as to the validity of the learner's permit and assuming that would be a defence to the charge, it is a mistake on a matter of law rather than fact. In those circumstances, s 24 of the Code has no application: Illich v Young [2000] WASCA 383; Denton v Bodycoat [2000] WASCA 424; Minear v Rudrum [2001] WASCA 10.
35 In any event, a mistake as to the validity of the learner's permit is not itself sufficient. The appellant would have to go further and establish a nexus between that mistake and the charge. The nexus must be that if there is a valid learner's permit, there can be no breach of s 49 of the Act. That is, as a matter of construction, incorrect for the reasons stated earlier.
36 Accordingly, the Magistrate did not err in failing to consider whether the defence of honest and reasonable but mistaken belief was available to the appellant. For these reasons, ground of appeal 2(b) also fails. In the circumstances, it is unnecessary to give further consideration to the question whether this is a case for an appeal court to allow a appeal against conviction following a plea of guilty.
Whether Sentence Manifestly Excessive and Magistrate Otherwise Erred
37 The appellant appeals against his sentence of 6 months' imprisonment on the ground that it is manifestly excessive.
38 What is meant by "manifestly excessive" is described in the joint judgment of Gleeson CJ and Hayne J in R v Dinsdale (2000) 115 A Crim R 558 in the following terms (at 561):
"A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not plainly apparent. It is a
(Page 18)
conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example custodial rather than non-custodial) or because the sentence is manifestly too long or too short."
39 The appellant says the Magistrate erred in failing to give a suspended sentence. The approach to be followed by a sentencing Judge when considering whether or not a suspended sentence is to be imposed has been considered in Latham v The Queen [2000] WASCA 338 per Parker J at [10]; Colledge v The Queen [2001] WASCA 132 per Murray J at [26]. Applying Dinsdale, Parker J in Latham v The Queen identified a two-step process. Firstly, the Court has to conclude that a sentence to a term of imprisonment and not some lesser sentence is called for: s 6(4), s 39(3) and s 76(2) of the Sentencing Act 1995. Only if a sentence of imprisonment is called for is it necessary and appropriate to proceed to the second step, which is to determine whether such a term of imprisonment should be suspended for a period set by the Court.
40 The power to suspend imprisonment given by s 76(2) of the Sentencing Act 1995 is not confined by reference wholly, mainly or specially to the effect suspension would have on the rehabilitation of a particular offender: Dinsdale per Gaudron and Gummow JJ at 565; per Kirby J at 579; per Gleeson CJ and Hayne J at 564. Rather, the same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. This means it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender, whether aggravating or mitigating, in deciding whether to suspend the term of imprisonment: Dinsdale per Kirby J at 85; per Gaudron and Gummow JJ at 26.
41 Further, to determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.
42 The penalty for an offence under s 49(2)(a) of the Act is:
(Page 19)
(a) a fine of not less that 20 PU ($1,000) or more than 80 PU ($4,000), and imprisonment for not more than 18 months; and
(b) the Court must disqualify the offender from holding or obtaining a driver's licence, for a period of not less than 9 months and not more than 3 years and the disqualification is cumulative upon any other period of disqualification or suspension.
43 The standards of sentencing customarily observed with respect to offences of this nature are identified in the reasons of Miller J in Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998. He said (at p17):
" ... the views expressed by the majority in [Police v Cadd & Ors (1997) 69 SASR 150] reflect the consistent line of authority in this Court, to which I earlier referred. That is, the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of a genuine emergency; cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and 'reasons militating in favour of an exercise of mercy'."
44 The reference in this extract from Krakouer to rehabilitation as a relevant factor in considering whether to suspend a term of imprisonment is not inconsistent with Dinsdale.
45 In deciding on an immediate term of imprisonment the Magistrate in this case referred to the fines given to the appellant in 1995 and 1997 for driving under suspension and observed that they had little or no deterrent effect upon the appellant, referred to the substantial sanctions imposed under the Act, said he took into account the appellant's personal circumstances (without identifying what aspects of his circumstances) and the circumstances of the offence (which he said involved a deliberate decision when there was no emergency). The Magistrate did not refer to the fact that the appellant pleaded guilty at an early stage, did not identify
(Page 20)
what it was about the appellant's personal circumstances which in his estimation made a term of immediate imprisonment appropriate, did not refer to the fact that the appellant had not been convicted of any offence of any nature since May 1997 or how he reconciled that fact with his conclusion that the fine in 1997 had no deterrent effect. Further, the Magistrate appears to peremptorily dismiss the option of a suspended sentence on the basis of it having been ruled out by decisions of this Court. That approach reflects an error of principle. In each case the circumstances of the offender and of the offence must be reconsidered to determine the appropriateness of suspending the term of imprisonment. That is mandated by the Sentencing Act 1995 (s 39(3)) and by the authorities. The Magistrate having made an error of principle, it is open to this Court to exercise its own sentencing discretion if it has the necessary information: House v The Queen (1936) 55 CLR 499 at 505.
46 In the circumstances, a sentence to a term of imprisonment was called for. This conclusion reflects the seriousness of the offence, the primacy of the deterrent (specific and general) purpose in sentencing for offences of this nature and takes into account the appellant's record. However, this is not a case of a court order being treated with contempt. Rather, it is disqualification by way of administrative decision. Further, the matters personal to the appellant suggest grounds for optimism for his rehabilitation. He had committed no offence of any nature in the period May 1997 to April 2001 which period coincided with a period of stability in his personal life, which is ongoing. Although the driving the subject of the conviction is not trivial (as that term is explained in Krakouer at p11) and cannot be described as an emergency, it was undertaken in extenuating circumstances which, although they reflect a degree of defiance, prevent it from being contumelious. For these reasons, I have reached the view that the sentence of imprisonment should be suspended to give the appellant a last chance to avoid imprisonment. For these reasons I propose to order that:
(1) the appeal against sentence be allowed;
(2) the decision of the Magistrate sentencing the appellant to imprisonment for 6 months be set aside and in lieu thereof there be imposed a sentence of 6 months' imprisonment, suspended for a period of 12 months;
(3) the order made by the Magistrate for disqualification is to remain in force.