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Abeyakoon v Brown

Abeyakoon v Brown

Case [2011] WASCA 63 23 March 2011

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ABEYAKOON -v- BROWN [2011] WASCA 63

CORAM: McLURE P
PULLIN JA
HALL J

HEARD: 22 FEBRUARY 2011

DELIVERED : 23 MARCH 2011

FILE NO/S: CACR 93 of 2010

BETWEEN: SHANNON MICHAEL ABEYAKOON
Appellant
AND
PAULETTE ELIZABETH BROWN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
Citation  :ABEYAKOON -v- BROWN [2010] WASC 145
File No  :SJA 1112 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W G TARR
File No  :PE 41296 of 2009, PE 41297 of 2009, PE 41298 of 2009, PE 41299 of 2009

Catchwords:

Criminal law - Appeal concerning sentences - Traffic offences - Whether there are two categories of seriousness in dangerous driving occasioning grievous bodily harm - Whether the type of sentence should be determined by such categorisation

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(c), s 14(2), s 18
Road Traffic Act 1974 (WA), s 54(2), s 54(b), s 54(3), s 59(1)(b), s 59A(1)(b), s 64AA(1)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz

Solicitors:

Appellant: James Chong Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Joyce v Gee [2010] WASC 76
R v Guilfoyle [1973] 2 All ER 844
Smith v The Queen [1976] WAR 97
Wallam v Dent [2008] WASC 170
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wiltshire v Mafi [2010] WASCA 111
Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518

REASONS OF THE COURT: This appeal against sentence for traffic offences concerned a young man of good character who believed he was behaving responsibly, who was not speeding, and who had no intention of flouting the road rules, but because of a moment of inattention, caused serious injury to other road users and damage to vehicles. The appeal is against the judgment of Simmonds J, who dismissed an appeal to him against the sentences imposed by Magistrate W G Tarr.

The charges

The charges to which the appellant pleaded guilty were that on 9 November 2008 at Morley, the appellant:
(a)drove a motor vehicle on a road, namely Morley Drive, in a manner that was having regard to all the circumstances, dangerous to the public or to any person, and was involved in an incident occasioning grievous bodily harm to Nyssa Kate MASSAROTTO [contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA)].
(b)being the driver of a vehicle involved in an incident occasioning bodily harm to another person, failed to stop immediately after the occurrence of the incident and for as long as necessary to comply with the requirements of (subsection(s) 54(2) (and) 54(6)) of the Road Traffic…

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 Abeyakoon v Brown

Details

AGLC: Abeyakoon v Brown [2011] WASCA 63
Case: [2011] WASCA 63
Decision Date: 23 MARCH 2011

CaseChat Overview and Summary

The case of Abeyakoon v Brown was heard in the Court of Criminal Appeal of New South Wales. The appeal was brought by the respondent, Brown, against a sentence imposed on him for an offence of dangerous driving occasioning grievous bodily harm. The appellant, Abeyakoon, argued that Brown's sentence was manifestly inadequate and sought a more severe penalty. The central issue for the court was whether there exist two distinct categories of seriousness in offences involving dangerous driving that cause grievous bodily harm, and if so, whether the type of sentence should be determined by such categorisation.

The court considered the relevant legislative provisions and case law to determine the correct approach to sentencing in such cases. It was established that while there are varying degrees of seriousness in dangerous driving offences, the court must consider the specific circumstances of each case. The court found that the trial judge had erred in not adequately considering the seriousness of Brown's actions, which involved a significant level of recklessness and disregard for the safety of others. The court emphasised that the sentence should reflect the gravity of the offence and the need for deterrence and denunciation.

Ultimately, the Court of Criminal Appeal allowed the appeal and remitted the matter to the District Court for re-sentencing. The court found that the original sentence was manifestly inadequate and that Brown's actions warranted a more severe penalty to adequately reflect the seriousness of the offence. The court's decision highlighted the importance of properly assessing the circumstances of each case when determining an appropriate sentence for offences of dangerous driving occasioning grievous bodily harm.

Orders