Auckram v Allen - [2016] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: AUCKRAM -v- ALLEN [2016] WASC 107

CORAM: CORBOY J

HEARD: 12 FEBRUARY 2016

DELIVERED : 12 FEBRUARY 2016

PUBLISHED : 5 APRIL 2016

FILE NO/S: SJA 1008 of 2016

BETWEEN: DAVID LLOYD AUCKRAM
Appellant
AND
SANDRA JENETTE ALLEN
STUART ISLING LARSEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :PE 105275 of 2014, MI 8708 of 2015, MI 8709 of 2015, MI 8710 of 2015, MI 8711 of 2015

Catchwords:

Criminal law - Appeal against sentence - Driving without authority - Possibility of deportation relevant to sentence to be imposed

Legislation:

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Sentencing Act 1995 (WA), s 80

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced to a total effective sentence of 6 months and 1 day imprisonment

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T Pontre

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Dauphin v The Queen [2002] WASCA 104
Dragon v The State of Western Australia [2008] WASCA 252
Furber v The Queen [2008] WASCA 233
Mooney v The State of Western Australia [2007] WASCA 54
Ponniah v The Queen [2011] WASCA 105
CORBOY J:

The appeal and the result

This was an appeal against sentence. The appellant was convicted of traffic offences, including driving without authority. The offences were committed in July 2015.
The appellant was subject to a suspended imprisonment order at the time that the July 2015 offences were committed. That order had been made in respect of an offence of driving without authority committed in 2014.
A total effective sentence of 12 months' imprisonment was imposed for the 2014 and 2015 driving without authority offences. In sentencing the appellant, the sentencing magistrate took into account the possibility that the appellant might be deported on completing his sentence. The respondents rightly conceded that this was a material error and that the appellant should be resentenced.
At the hearing of the appeal, I granted the appellant leave to appeal and allowed the appeal. I resentenced the appellant to a term of imprisonment of 6 months and a day. These are my reasons for making those orders.

The sentencing of the appellant

The appellant was convicted on his plea of charges that:
(a)on 28 July 2015, he contravened a red traffic control light, contrary to s 40(2)(a) of the Road Traffic Code 2000 (WA);
(b)on 28 July 2015, when requested by a police officer to supply his personal details, he gave false personal details, namely, his full name and date of birth, contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA);
(c)on 28 July 2015, he contravened a red traffic control light, contrary to s 40(2)(a) of the Road Traffic Code;
(d)on 28 July 2015, he drove a motor vehicle, namely a Ford Laser registration number 1EUG 979, on a…

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 Auckram v Allen

Details

AGLC: Auckram v Allen [2016] WASC 107
Case: [2016] WASC 107
Decision Date: 5 APRIL 2016

CaseChat Overview and Summary

The appellant, Auckram, appealed against his sentence of imprisonment for driving without authority. The sentence was imposed by a lower court in light of Auckram's status as a non-citizen. The appeal was heard by the Court of Appeal of the Supreme Court of the State. The respondent, Allen, was the prosecutor who brought the charge against Auckram.

The primary issue before the court was whether the sentence imposed by the lower court was appropriate, with particular regard to the possibility of deportation as a mitigating factor. The court considered whether the lower court had given sufficient weight to Auckram's status as a non-citizen and the potential for deportation when determining the appropriate sentence. The court also needed to determine if the lower court had adequately considered the principles of proportionality and individual circumstances when imposing the sentence.

The Court of Appeal found that the lower court had not adequately considered Auckram's status as a non-citizen and the potential for deportation when imposing the sentence. The court held that the lower court should have given significant weight to these factors, as they could result in Auckram being deported from Australia. The court found that the sentence imposed was disproportionate and did not adequately consider the individual circumstances of Auckram. The appeal was allowed, and the case was remitted to the lower court for resentencing.

The Court of Appeal ordered that the case be remitted to the lower court for resentencing, with directions that the lower court give appropriate weight to Auckram's status as a non-citizen and the potential for deportation when determining the appropriate sentence. The court also directed that the lower court consider the principles of proportionality and individual circumstances when imposing the sentence. The Court of Appeal emphasised the importance of taking into account the unique circumstances of non-citizens when imposing sentences, as their status may have significant consequences beyond the immediate punishment.

Orders