ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT ESPERANCE
Coram  :MAGISTRATE W G TARR
File No  :ES 295 of 2007, ES 296 of 2007, ES 284 of 2007, ES 285 of 2007, ES 346 of 2007, ES 347 of 2007, ES 828 of 2007, ES 829 of 2007

Catchwords:

Criminal law and procedure - Appeal against sentence - Traffic offences - Driving under the influence of alcohol - Sentence manifestly excessive - Totality principle - Plea of guilty - Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Appellant re-sentenced

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr C Miosevich
Respondents : Ms R E King

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondents : State Solicitor for Western Australia

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

Cameron v The Queen (2002) 209 CLR 339
Karolides v The State of Western Australia [2006] WASCA 240
Logan v Kuser [2008] WASC 65
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 57
Rossiter v Francisty [2005] WASC 270

JOHNSON J: The appellant appeals against the total sentence imposed upon him in the Esperance Magistrates Court on 7 August 2007 for a series of offences, the majority of which were breaches of the Road Traffic Act 1974 (WA) (RTA). He also appeals against the specific sentence for an offence of driving under the influence of alcohol committed on 23 June 2007.
The grounds of appeal are as follows:
1.The learned magistrate erred by imposing a sentence that was manifestly excessive particularly having regard to:
i.The standards of sentencing for these offences;
ii.Totality;
iii.The plea of guilty;
iv.The applicant's personal circumstances.
2.In sentencing on charge ES 828 of 2007, driving under the influence, the learned magistrate erred by either failing to reduce the sentence by one third in accordance with the transitional provisions or failing to give a discount on the plea of guilty as the resulting sentence of 12 months imprisonment was the maximum that could be imposed summarily.
The following table sets out the offences, the prosecution notice numbers, the dates on which the offences were committed and the sentences imposed. Periods of licence disqualification are not included in the table as they are not relevant to the appeal.

Prosecution Notice No.	Offence	Legislation	Date of Offence	Sentence
ES 295/07	Driving whilst disqualified	RTA s 49(1) and (2)(a)(iii)	26/01/07	6 months
ES 296/07	Driving whilst under the influence	RTA s 63(1)	26/01/07	9 months (sentence on which others accumulated)
ES 284/07	Driving whilst under the influence	RTA s 63(1)	03/02/07	6 months cumulative on 296/07

ES 285/07	Driving whilst disqualified	RTA s 49(1) and (2)(a)(iii)	03/02/07	9 months
ES 346/07	Unlawful damage	Criminal Code s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdullah v Mills

Details

AGLC: Abdullah v Mills [2008] WASC 128
Case: [2008] WASC 128
Decision Date: 4 JULY 2008

CaseChat Overview and Summary

The appellant, Abdullah, appealed against his sentence for multiple traffic offences, including driving under the influence of alcohol. The sentence imposed by the magistrate was deemed excessive, prompting Abdullah to seek a re-sentencing. The case was heard in the Court of Appeal. The central issue was whether the sentence imposed by the magistrate was manifestly excessive, warranting a re-sentencing under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Additionally, the court had to consider the appropriate application of the totality principle in sentencing multiple offences.

In considering the appeal, the court held that the original sentence was indeed manifestly excessive. The court recognised the importance of the totality principle in ensuring that the sentence reflects the overall criminality of the appellant's conduct. The court also noted that the appellant had pleaded guilty, which should be taken into account in determining the appropriate sentence. After a careful review of the sentencing principles and the totality of the appellant's offending, the court substituted new sentences for those imposed by the magistrate. The new sentences were intended to better reflect the appellant's overall criminality while ensuring that the total sentence remains within a reasonable range.

The court allowed the appeal and re-sentenced the appellant, ordering that the new sentences be imposed in a manner that reflects the totality of his offending. The court adjusted the sentences to ensure that they are cumulative and concurrent as appropriate. The total sentence imposed was 15 months, with the appellant being eligible for parole. The court concluded that the substituted sentences were more appropriate and better aligned with the sentencing principles.

Orders

Orders of the court

In the circumstances, I would substitute the following sentences for those imposed by the magistrate dealing with offences in the order they appear in Table 1:

1. ES 295/07 - 6 months

2. ES 296/07 - 6 months cumulative on count 1

3. ES 284/07 - 7 months concurrent

4. ES 285/07 - 7 months concurrent

5. ES 346/07 - 3 months concurrent

6, ES 347/07 - 3 months cumulative on count 2

7. ES 828/07 - 8 months concurrent

8. ES 829/07 - 8 months concurrent

The total sentence imposed is therefore 15 months. The sentences imposed have been adjusted so as to more easily result in a sentence which reflects the total criminality of the appellant's course of offending.

I would allow the appeal and substitute these sentences for those imposed by the magistrate. As did the magistrate, I will order that the appellant be eligible for parole.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Abdullah v Mills [2008] WASC 128

Most Recent Citation

Sheiner v Roberts [2009] WASC 281

Cases Citing This Decision

Gable v Nardini [2010] WASC 321
Citation 1 (Para 6)

…ed on appeal to 12 months' imprisonment with parole. • Abdullah v Mills [2008] WASC 128 ‑ three convictions for driving under suspension, three convictions for driving under the influence and other associated offences with a prior record of two convictions for driving under suspension and other offences ‑ a total…
Patterson v Cutler [2010] WASC 316
Citation 2 (Para 6)

…for a number of traffic offences, including that of DUI, where the offences were committed on a number of occasions, I note that in Abdullah v Mills [2008] WASC 128, referring to the decision in Logan and apparently referring to the decisions in McDonald and Moody , Johnson J said this: In Logan v Kuser [2008] WA…
Mears v Holleman [2010] WASC 39
Citation 3 (Para 6)

…al sentence. That conclusion is supported further by the decisions in Humble v State Solicitor for Western Australia [2009] WASC 99; Abdullah v Mills [2008] WASC 128; Williams v Franzinelli [2001] WASCA 241; Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206; and Kearney v Rinaudo [2007] WASC 104. This last batch…
Sheiner v Roberts [2009] WASC 281
Citation 4

…Abdullah v Mills [2008] WASC 128 Anderson v Heath [2005] WASC 253 Anderson v Little [2009] WASC 143 Anderson v Stilwell [2006] WASC 257 Austin v Grapes [2004] WASCA 102 Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206 Bell v Wesley [2007] WASC 264; (2007) MVR 134 Calway v Wiebe (unreported, WASC, Library No 990…

See all citing cases →

Cases Cited

Logan v Kuser [2008] WASC 65
Citation 1 (Para 8)

…In Logan v Kuser [2008] WASC 65 I made the comment that, on any interpretation, these last two cases are serious examples of offences of the relevant type committed in circumstances where there is a clear need for personal deterrence in view of the number of prior convictions. I should also add that there is a cl…
MPD v The State of Western Australia [2008] WASCA 57
Citation 2 (Para 3)

…ce unless the circumstances of his offending behaviour were so serious that nothing less than the maximum sentence could be justified: Moody v French [2008] WASCA 57 [35], [38] of the decision of the majority; McDonald v White [2007] WASCA 213 [28]; Cameron v The Queen (2002) 209 CLR 339. Notwithstanding that the…
McDonald v White [2007] WASCA 213
Citation 3 (Para 3)

…othing less than the maximum sentence could be justified: Moody v French [2008] WASCA 57 [35], [38] of the decision of the majority; McDonald v White [2007] WASCA 213 [28]; Cameron v The Queen (2002) 209 CLR 339. Notwithstanding that the offence was the appellant's fourth offence of this type and the blood alcohol…
Karolides v The State of Western Australia [2006] WASCA 240
Citation 4 (Para 9)

…e decision to lower the total sentence imposed resulted from the application of the totality principle. In Karolides v The State of Western Australia [2006] WASCA 240 McLure JA observed that there are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship…
Cameron v the Queen [2002] HCA 6
Citation 5 (Para 3)

…ximum sentence could be justified: Moody v French [2008] WASCA 57 [35], [38] of the decision of the majority; McDonald v White [2007] WASCA 213 [28]; Cameron v The Queen (2002) 209 CLR 339. Notwithstanding that the offence was the appellant's fourth offence of this type and the blood alcohol reading was 0.275%, the highest l…
Rossiter v Francisty [2005] WASC 270
Citation 6 (Para 2)

…The appellant relied on the decision of McKechnie J in Rossiter v Francisty [2005] WASC 270 which involved an appeal against a sentence of 14 months for the appellant's seventh, eighth, ninth and tenth offences of driving under suspension which was reduced on appeal to 8 months. In doing so McKechnie J stated: By…

Legislation Cited

Road Traffic Act 1974 (WA)
1 mention (from Para 1)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
1 mention (from Para 2)