ON APPEAL FROM:
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 - Sentencing - Offences of dangerous driving involving grievous bodily harm, bodily harm and failure to stop - Blood alcohol offence - Errors in approach by reference to categorisation of offending - Whether total effective sentence of imprisonment manifestly excessive

Legislation:

Crimes Act 1990 (NSW), s 52A
Criminal Appeals Act 2004 (WA), s 14, s 40
Criminal Code (WA), s 5
Criminal Law Amendment (Homicide) Act 2008 (WA), s 38
Interpretation Act 1984 (WA), s 67
Road Traffic Act 1974 (WA), s 54, s 59, s 59A, s 59B, s 64AA
Road Traffic Amendment Act (No 2) 2007 (WA), s 22
Sentencing Act 1995 (WA), s 6, s 39, s 76

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Mr S L Dworcan

Solicitors:

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

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

Ainsworth v D (a child) (1992) 7 WAR 102
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eves v The State of Western Australia [2008] WASCA 7
Furber v The Queen [2008] WASCA 233
Joyce v Gee [2010] WASC 76
Kay v The Queen [2004] WASCA 222
Knott v Moriarty [2010] WASC 36
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marshall v Lockyer [2006] WASCA 58
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Poletti v Adams [2005] WASC 66
R v Guilfoyle [1973] 2 All ER 844
R v Jurisic (1998) 45 NSWLR 209
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheppard v Blakey [2001] WASCA 309
Smith v The Queen [1976] WAR 97
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Wallam v Dent [2008] WASC 170
Withnell v Walker [2005] WASCA 8
Wood v The Queen [2002] WASCA 95

SIMMONDS J:

Introduction

This is an appeal against sentences of imprisonment imposed by a magistrate for four offences arising out of an incident of dangerous driving.
The background to and circumstances of the offending, which I have concluded were not in significant contest before the learned magistrate, were these.
On 9 November 2008 at about 1.00 pm the appellant and a friend, whose 23rd birthday it was, arrived at a hotel.…

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 [2010] WASC 145
Case: [2010] WASC 145
Decision Date: 18 JUNE 2010

CaseChat Overview and Summary

The appeal arose from the sentencing of Brown, who had been convicted of dangerous driving involving grievous bodily harm, dangerous driving involving bodily harm, and failing to stop after an accident. The incident occurred when Brown, driving under the influence of alcohol, collided with a vehicle, causing serious injuries to the driver of the other vehicle. Brown was subsequently charged and sentenced to a total effective term of imprisonment of six years and eight months, which he sought to appeal on the basis that it was manifestly excessive.

The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. Brown's counsel argued that the trial judge erred by categorising the offending as "serious and violent" rather than "less serious violent" and thereby applying an unduly harsh sentence. The court needed to determine whether the sentence was manifestly excessive by considering the totality of the offending, the culpability of the offender, and the principles of sentencing for dangerous driving offences.

The court observed that the trial judge had considered the totality of the offending, including the gravity of the offences, the circumstances in which they were committed, and the extent of the harm caused. The court further noted that the trial judge had appropriately weighed the offender's culpability, including the fact that Brown was driving under the influence of alcohol and had a history of driving offences. The court held that the sentence was not manifestly excessive, as it was within the range of sentences that could be regarded as appropriate for the offending. The appeal was therefore dismissed.

The court did not make any orders as the appeal was dismissed.

Orders