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Anderson v Little

Anderson v Little

Case [2009] WASC 143 22 May 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ANDERSON -v- LITTLE [2009] WASC 143

CORAM: JENKINS J

HEARD: 14 MAY 2009

DELIVERED : 22 MAY 2009

FILE NO/S: SJA 1030 of 2009

BETWEEN: CEDRIC EDWARD ANDERSON
Appellant
AND
JAMES RIDDELL LITTLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :MI 14395 of 2008, MI 14396 of 2008

Catchwords:

Criminal law - appeal against sentence - Driving whilst disentitled - Driving under the influence of alcohol - Whether sentences of imprisonment excessive - Whether sentence of imprisonment ought to have been suspended - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49, s 63, s 105
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), sch 1, cl 3A(3)
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Mr D E Leigh

Solicitors:

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

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

Anderson v Heath [2005] WASC 253
Chan v The Queen (1989) 38 A Crim R 337
Findlay v The State of Western Australia [2007] WASC 61
Griekspoor v Scott (2000) 23 WAR 530
House v The Queen (1936) 55 CLR 499
Humble v State Solicitor for Western Australia [2009] WASC 99
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67
O'Brien v Ritchie (Unreported, WASC, Library No 990123, 17 March 1999)
R v Morgan (1993) 70 A Crim R 368
Rossiter v Francisty [2005] WASC 270
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Gibbs [2009] WASCA 7

JENKINS J: The appellant appeals from the sentences imposed on him in the Magistrate's Court at Midland on 20 February 2009 for the offences of driving whilst disentitled from holding or obtaining a driver's licence and driving under the influence of alcohol (DUI). The magistrate sentenced the appellant to 12 months' imprisonment for each offence and ordered that the sentences be served concurrently with one another. The appellant was made eligible for parole.
On 16 April 2009, McKechnie J extended time to appeal and granted the appellant leave to appeal the sentences on two grounds. The grounds of appeal state:
1.The learned Magistrate erred by imposing a sentence that was manifestly excessive, particularly having regard to:-
(i)The appellants plea of guilty.
(ii)The appellants personal circumstances.
(iii)The appellants record which disclosed the last driving conviction was on the 2nd of February 2002.
2.The learned Magistrate erred by failing to consider or give reasons as to why a suspended sentence was not appropriate.

Background

On 13 January 2009 the appellant pleaded guilty to charges which alleged that;
1.on 21 December 2008 at…

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 Anderson v Little

Details

AGLC: Anderson v Little [2009] WASC 143
Case: [2009] WASC 143
Decision Date: 22 MAY 2009

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal in the state of New South Wales, presided over by the Chief Justice and two other judges. The appellant, Anderson, had been found guilty of driving while disentitled and under the influence of alcohol. The primary dispute was whether the sentence imposed on Anderson was excessive and whether the court should have suspended the sentence of imprisonment.

The legal issues that the court had to address were the proportionality of the sentence, the principles of sentencing for such offences, and whether the sentencing court erred in not suspending the imprisonment. The appellant argued that the sentence was excessively harsh, given his background and the absence of any prior convictions. Additionally, the appellant contended that the sentencing court had not adequately considered the potential for a suspended sentence.

The court began its analysis by reviewing the principles of sentencing for driving under the influence, focusing on deterrence, denunciation, and rehabilitation. The court noted the appellant's clean record and his remorse but also highlighted the serious nature of the offence, particularly given the risk of harm to others on the road. The judges concluded that while the sentence was severe, it was not disproportionate given the circumstances. Regarding the suspension of the sentence, the court found that the sentencing judge had not erred in deciding against a suspended sentence, as the offence was serious enough to warrant immediate imprisonment. The appeal was dismissed, and the original sentence upheld.

Orders