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Anderson v Stilwell

Anderson v Stilwell

Case [2006] WASC 257 16 November 2006

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ANDERSON -v- STILWELL & ORS [2006] WASC 257

CORAM: BLAXELL J

HEARD: 17 OCTOBER 2006

DELIVERED : 16 NOVEMBER 2006

FILE NO/S: SJA 1068 of 2006

BETWEEN: MARK ANTHONY ANDERSON
Appellant
AND
ANDREW THOMAS STILWELL
First Respondent
JOHN ROBERT JONES
Second Respondent
JOHN ADAMS
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L JONES
File No  :PE 29478 of 2006, PE 29479 of 2006, AR 2880 of 2006, AR 3449 of 2006, AR 3450 of 2006

Catchwords:

Criminal law - Appeal against sentence - Driving offence - 12th, 13th and 14th convictions for driving under suspension - Each successive offence committed while on bail - Sentences totalling 2 years immediate imprisonment - Whether sentences took account of all mitigating factors - Whether total sentence manifestly excessive

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal as to second sentence upheld
Total sentence reduced by 4 months

Category: B

Representation:

Counsel:

Appellant:     Mr R D Young
First Respondent           :     Ms D E Quinlan
Second Respondent       :     Ms D E Quinlan
Third Respondent         :     Ms D E Quinlan

Solicitors:

Appellant:     Gunning Young
First Respondent           :     State Solicitor
Second Respondent       :     State Solicitor
Third Respondent         :     State Solicitor

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

House v The King (1936) 55 CLR 499
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bakdadi v O'Neill [2003] WASCA 267
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Chan v The Queen (1989) 38 A Crim R 337
Cooper v Yates [2005] WASC 34
Dragic v Burrows [2000] WASCA 385
Heaton v Moulden [2004] WASCA 29
Herbert (2003) 27 WAR 330
Jarvis v The Queen (1998) 20 WAR 201
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Lowndes v The Queen (1999) 195 CLR 665
Mason v Morrison [2004] WASCA 181
Plenty v Bargain [1999] WASCA 67
Postiglione v The Queen (1997) 189 CLR 295
R v Tait (1979) 46 FLR 386
R v White [2002] WASCA 112
Thompson v Murray [2004] WASCA 168
Warren v Van Den Berg [2004] WASCA 32
Williams v Franzinelli [2001] WASCA 241

BLAXELL J: This is an appeal from sentences imposed in the Magistrates Court at Armadale on 30 May 2006 in respect of three offences of driving a motor vehicle while under suspension. Each of the subsequent offences was committed while the appellant was on bail in respect of the previous matter(s), and the learned Magistrate imposed three cumulative terms of 8 months, amounting to 2 years' imprisonment in total.
The appellant obtained leave to appeal on the following single ground of appeal:
"1.The learned Magistrate erred in ordering that the sentence of 8 months imprisonment for each of three offences of driving under suspension be served cumulatively on each…

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 Stilwell

Details

AGLC: Anderson v Stilwell [2006] WASC 257
Case: [2006] WASC 257
Decision Date: 16 NOVEMBER 2006

CaseChat Overview and Summary

In Anderson v Stilwell, the appellant sought to appeal against his sentence, which was imposed after he was found guilty of three separate offences of driving under suspension. Each offence occurred while the appellant was on bail for the previous offence. The cumulative effect of these convictions resulted in a total sentence of two years of immediate imprisonment. The appellant contested the severity of the sentence, arguing that it did not adequately consider all the mitigating factors present in his case and that the total sentence was manifestly excessive.

The primary legal issues before the court were whether the sentences imposed for each offence adequately reflected the mitigating circumstances of the appellant's case and whether the cumulative sentence of two years in immediate imprisonment was manifestly excessive. The court was tasked with evaluating the sentencing principles applied, including the need for deterrence, denunciation, and the rehabilitation of the offender, while also considering the appellant's personal circumstances and the specific nature of the offences.

The court held that while the appellant's repeated offending was concerning, the sentences imposed for each offence did take into account the mitigating factors to some extent. However, the court found that the cumulative sentence of two years was excessive. The court emphasised the importance of proportionality in sentencing and noted that the repeated nature of the offences did not warrant such a severe penalty. The court ultimately concluded that the total sentence was manifestly excessive and ordered a re-sentencing hearing to ensure that the new sentence appropriately reflected the principles of justice and the specific circumstances of the case.

The final orders of the court included a re-sentencing hearing to determine an appropriate sentence that balanced the need for deterrence and denunciation with the principles of proportionality and rehabilitation. The court provided clear guidelines for the re-sentencing process, ensuring that all mitigating factors were thoroughly considered and that the new sentence would be more reflective of the appellant's circumstances and the nature of the offences.

Orders