Wyatt v Davies and Maher [2011] ACTSC 29 (1 March 2011)

APPEAL – criminal law – appeal against severity of sentence – whether sentence manifestly excessive – whether Magistrate erred in failing to reduce sentence for plea of guilty – appellant was a chronic repeat offender – Magistrate showed leniency in not imposing maximum fine as well as maximum period of imprisonment and in allowing for parole – sentence not manifestly excessive – appeal dismissed.

1. Robert Wyatt likes to drive, even when he should not do so. The table set out in Appendix A contains most of the details of his convictions as presented to the learned Magistrate against whose sentence imposed on 23 June 2010 he has appealed. The table speaks for itself.

2. On 16 December 2008, Robert Wyatt was seen by police driving on Launceston Road, Lyons. When spoken to, he admitted that he had driven from his home in Rivett, and that he did not hold a driving licence. On 8 February 2010, Robert Wyatt was seen by police driving in Lysaght Street, Mitchell. When spoken to by police, he admitted that he did not hold a driving licence.

3. On 23 June 2010, Robert Wyatt pleaded guilty, and was convicted and sentenced as a repeat offender on a charge of having, on 8 February 2010, driven while disqualified. He also had to be re-sentenced on that day for an admitted breach of a good behaviour order, which another ACT magistrate had imposed on him on 17 June 2009 in connection with a six-month suspended sentence of imprisonment imposed following a conviction for driving while disqualified on 16 December 2008.

4. On the conviction as to the 8 February charge, her Honour sentenced him to twelve months imprisonment. On the admitted breach, she re-sentenced him to two months imprisonment, consecutive on the first period imposed. Thus a total sentence of fourteen months imprisonment was imposed. Her Honour set a non-parole period of eleven months.

5. On 19 November 2010, his appeal came on for hearing before me. The grounds upon which Robert Wyatt relied were that the sentence imposed was manifestly excessive, that the non-parole period was excessive and inappropriate, that proper consideration had not been given to periodic detention before imposing a sentence of full-time imprisonment and that there was error on the part of the learned Magistrate for failing to reduce the sentence for the plea of guilty.

6. The appeal book contained a transcript of the submissions made by counsel for Robert Wyatt and by the prosecutor at the sentencing hearing and of the reasons of her Honour. I turn to those submissions and those reasons. One of the submissions made by counsel for Robert was linked to Mrs Wyatt’s health problems, the submission being that the imposition of a prison sentence would place pressure on family members. Another was that there was mitigation in that Robert Wyatt had admitted his guilt very promptly to the police and to the court. Another was that he was willing to submit to a periodic detention order.

7. The prosecutor first noted that the maximum penalty for the offence in question was $11,000 and twelve months imprisonment. The prosecutor then put that: this instance was in the worst category of offending; the record of Robert Wyatt was appalling; he should be offered no leniency; he had not been deterred after previous leniency; while he had pleaded guilty at the first available opportunity and that had to be taken into account, the effect on sentence should be minimal given that the prosecution case was overwhelming; and, finally, that the sentence needed to reflect specific and general deterrence.

8. Her Honour started her sentencing remarks with an invitation to counsel for Robert Wyatt, as to any points that she made, to cavil with them or expand on them when she finished. She then dealt with subjects, including: the very early plea of guilty; the excuse advanced for Robert Wyatt driving; the circumstance that the driving occurred within the period of a suspended sentence order from the Yass Local Court as well as the suspended sentence order from the ACT Court; the reliance made at the hearing on 17 June 2009, as before her, on Robert Wyatt being a carer for his wife and having two jobs and having plans to dispose of five cars; the absence of medical evidence as to the health of Robert Wyatt and his wife; the limited information regarding his possible mild intellectual disability; his prior convictions; matters going to the seriousness of the offending; and specific and general deterrence.

9. Before she had finished her remarks, counsel for Robert Wyatt took up with her three matters that he had not raised earlier: the absence of any indication that alcohol was a factor in Robert Wyatt’s driving; the absence of any indication that Robert Wyatt’s driving performance was “lacking in appropriateness”; and the circumstance that Robert Wyatt was driving at 2.30 am when few people and vehicles were likely to be on the road. These were briefly but appropriately addressed by her Honour, before she returned to address her concerns as to the driving of Robert Wyatt, which she described as “repetitious and contumacious”. When counsel for Robert Wyatt was asked if he wanted to add anything more, he made a plea for the setting of a non-parole period. There was a brief mention of Robert Wyatt’s community service, with the learned Magistrate accepting the confirmation that it had been served.

10. Before me, oral submissions focused on the issues of setting the maximum term of imprisonment and the setting of the non-parole period.

11. As to the allied subjects of maximum penalty and leniency, her Honour was faced with what was, on any view, an appalling record of past convictions and a prosecutor who was pressing for no leniency to be shown and for the imposition of the maximum penalty, namely a fine of $11,000 and twelve months imprisonment. What the prosecutor pressed for was not acceded to. A limited degree of leniency was shown. There was leniency arising not only from imposing no fine, but also in setting a period for possible parole. I cannot accept that the learned Magistrate erred in allowing merely a limited degree of leniency, or in not spelling out more fully than she did why she showed some leniency, but not more or less than she did. She specifically noted the need for her to take account of the early plea of guilt, but also that the prosecution case was overwhelmingly strong.

12. The question of setting a non-parole period is very much a matter of discretion. My attention was drawn to the Victorian case of DPP v Josefski [2005] VSCA 265 (17 November 2005). Although an appeal against the setting of a non-parole period that was found to be too low, it provides a helpful guide as to three of the “many and varied” factors to be taken into account in fixing a non-parole period. In setting a non-parole period, the questions to be asked are as follows:

13. While the learned Magistrate did not in specific terms answer those questions, her sentencing remarks clearly reveal that her answers could only have been along the lines: very important, very important and very poor. Given the appalling record of Robert Wyatt, the setting of an eleven month non-parole period for a head sentence of fourteen months cannot be seen as excessive.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Acting Justice Teague.

Date	Offence	Sentence
08/12/2009	Drive while disqualified (Yass - NSW)	* 2 years suspended upon GBO of 2 yrs. * Disqualified 2 years commencing 19/1/2012 * Disqualification 3 yrs commencing 19/1/14
?/06/2009	Drive while disqualified	* Disqualified indefinitely until the court orders * Convicted/sentences 6 months suspended upon GBO for 12 months. * 200 hours community service
19/01/2009	Never licensed person drive on road (NSW)	* Convicted GBO 18 months * License disqualified 3 years from 19/1/2009
03/12/2004	Drive while disqualified	* Convicted 3 months served by way of 12 periods of periodic detention. * Disqualified from holding/obtaining licence for 3 yrs.
	Drive while disqualified	* Same and concurrent with above
	Drive while disqualified	* Same and concurrent with above
	Use unregistered/ suspended vehicle No 3rd party insurance No stop at/before stop sign/line Possess false registration plate	* Fined $100 on each charge
31/05/2004	Unlicensed for class (NSW)	* Fined $400 * Disqualified 3 months
15/07/2002	Unlicensed for class (NSW)	* Fined $300 * Disqualified 2 months
19/06/2002	Drive while disqualified	* Convicted and sentences to 6 months imprisonment * License disqualified until set aside by court
	Breach/Conv/Sent/Later Release/Fail Behave	* 3 months imprisonment cumulative with above. * Released after serving 1 month recogs of $1,5000. * GBO for 12 months from release * 9mths probation * 22 week cognitive skills program
	Exceed speed limit	* Fined $200
06/04/2000	Drive whilst suspended/disqualified	* 12months imprisonment to be relseased after 8months on entering recos $1,000. * To be of good behaviour for 2 years. * 12 months subject to supervision * License disqualified
08/04/1999	Breach of recog	* Amount paid
23/09/1998	Drive whilst cancelled	* 4 months imprisonment by way of 16 periods of periodic detention. * Disqualified from holding a license 18 months
	No 3rd party insurance Unregistered motor vehicle	* Convicted without passing sentence on enter recog $1,000 * To be on good behaviour for 12 months
25/03/1997	Drive while disqualified	* 6 month imprisonment * License cancelled
	No 3rd party Unregistered motor vehicle	* Proved without further penalty
04/09/1996	Apprehension warrant (x4)	* Committed for period specified * Suspended for 6 months
03/04/1996	Destroy/damage property	* 12 period of detention
03/04/1996	Drive while disqualified	* 12 period of periodic detention
	No 3rd party Unregistered motor vehicle	* $100 or 2 days on each
01/04/1996	Possess registration calculated to deceive (NSW) Owner permit drive unregistered vehicle Owner permit use uninsured vehicle	* $300 on each charge
19/06/1995	Drive while cancelled Drive while disqualified	* 208 hours within 12 months on each charge
19/06/1995	No 3rd party Unregistered motor vehicle	* Release on enter recog $1,000 * To be on good behaviour for 12 months with 12 months supervision
15/05/1995	Goods in custody (NSW)	* Fine $100
15/05/1995	Unlicensed driver	* Fine $200 or 3 days
	Drive uninsured motor vehicle Drive unregistered motor vehicle	* On each fined $100 or 2 days
27/10/1993	Drive whilst cancelled (2)	* Imprisonment 2 months * Imprisonment 12 months released after 6 months on enter recog $2,000 * To be of good behaviour for 3 years * Supervision 18 months concurrent with above sentence
	Signal left/turn-not give	* Convicted without penalty
23/06/1993	PCA-Breath	* 104 hours community service within 12 months
	Drive whilst disqualified	* Recog $1,000 * To be of good behaviour for 2 years * Supervision for 18months
23/06/1993	Breach/convict/sent/imm.release/fail behave	* Merged with above
04/02/1993	Culpable driving, negligent causing GBH (3)	* 2 yrs imprisonment recog $100; to be on good behaviour for 2 years; license cancelled. 208hrs community service; license cancelled. * Merged with above
	Breach/Convict/No sentence/Fail behave	* Convicted without penalty
04/02/1993	Speed Disobey stop sign	* Convicted without penalty
08/10/1992	Traffic light-disobey horizl red arrow-drv mv	* Fined $300
17/01/1992	Unregistered motor vehicle Passenger no seat belt (2)	* Fined$50 or 2 days * On each fined $30 or 2 days
27/11/1991	No 3rd party Unregistered motor vehicle	* On each fined $200 or 8 days
15/11/1991	Possess stolen property	* Fined $150
09/08/1991	Seat belt driver not wear secure-PV move fwd	* Fined $70
?/08/1991	Destroy property (4 charges)	* Conv rel on recog $1000 * To be on good behaviour for 12 months * Pay comp $755.60 * Merged with above
01/08/1990	Theft	Fined $75 or 3 days. Compensation $5.74
20/06/1990	Breach of recogs (3 charges)	On each charge no further action taken
07/07/1986	Exceed 60km/h limit >30km/h averment	$100
02/10/1986	Exceed .08 Breath (.11-.12)	* 12 month imprisonment * License cancelled
	Drive while cancelled (3)	* 12 month imprisonment concurrent with above. * License cancelled
	Fraudulent lend a mark for identifying mv/tlr	* $300 or 12 days
01/10/1986	Rape	* 7 years and 6 months imprisonment
	Assault occasioning actual bodily harm	* 18 months imprisonment to be served concurrent with above sentence to date from 24.9.86 non parole period to expire on 23.9.1990
04/12/1985	Malicious damage	* 104 hours unpaid work within 6 months
17/10/1985	Exceed 0.8 breath (.17)	* Released on recog $200 * To be of good behaviour for 2 years and fined $500 * Total compensation $109 * License cancelled
17/10/1985	Warrant of apprehension	* Comm to jail 5 days. Order susp 1 month
16/10/1985	Disobey red light	* $150
22/03/1985	Unregistered vehicle No 3rd party	* On each fined $50
	False name Smooth tyres	* On each fined $50
	Speed Fraud use of plate Aid and abet plated calculated to deceive	* On each fined $80
08/03/1985	Breach of recogs	* 6 month imprisonment released on enter of recog $1,000 * To be on good behaviour for 2 years * Accept supervision
	Larceny of Cwth property (2 charges)	* On each fined $150 or 6 days
19/08/1983	Fail signal intent (left)	* $40
10/05/1983	Exceed 0.8 (0.10)	* Fined $250 * License suspended 3 months
07/02/1983	Smooth tyres	* Fined $75
	No 3rd party insurance Unregistered motor vehicle	* On each fined $100
30/08/1982	Disobey red light	* Fined $80
	Unregistered motor vehicle No 3rd party insurance	* On each fined $100
27/07/82	Unregistered motor vehicle No 3rd party insurance	* On each fined $100
	Common assault Larceny of Cth property	* On each 3 months imprisonment
	Breach of Recogs	* 6months imprisonment to be Released after serving 3 months on recog $500 * To be of good behaviour for 3 years * Accept supervision.
12/02/1982	Breach of Recogs	* No further action
22/12/1981	Assault occasioning actual bodily harm	* Convicted without passing sentence released on entering recogs $500. * To be of good behaviour for 2 years and subject to supervision. * Pay penalty $100
20/08/1981	Speed	* Fined $85
25/06/1981	Larceny of Cwth property	* Fined $150 or 6 days
06/05/1951	Smooth tyres	* Fined $60
		* Fined $65 on each
16/04/1981	Malicious damage	* Without passing sentence released on recog $100 * To be of good behaviour for 12 months. * Pay witness expenses $156 * Compensation $30

NB: The information in the table above has been derived from the 9 sheets placed in the appeal book as being those provided to the learned Magistrate. Some dates were not discernible. Save for the Yass conviction, those marked (NSW) refer to appearances in the Queanbeyan Local Court. All not marked as (NSW) were in the ACT Magistrates Court, or, until 31/5/78 in the ACT Children’s Court, save for that on 1/10/86 before the ACT Supreme Court.

Supreme Court of the ACT

Wyatt v Davies and Maher [2011] ACTSC 29 (1 March 2011)