Barnes v Cooper - [2011] WASC 5

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARNES -v- COOPER [2011] WASC 5

CORAM: JENKINS J

HEARD: 15 & 19 NOVEMBER 2010

DELIVERED : 11 JANUARY 2011

FILE NO/S: SJA 1097 of 2010

BETWEEN: JEFFREY JOHN BARNES
Appellant
AND
DAVID BRIAN COOPER
First Respondent
WAYNE OLDHAM
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :CO 395 of 2006, CO 254 of 2007

Catchwords:

Criminal law - Appeal against sentence - Offence of breaching a community based order - Magistrate exercising power in the Sentencing Act s 133(1)(b) to sentence appellant for original offence - No power in s 133(1)(b) to impose disqualification order under Road Traffic Act as a part of the sentence - Meaning of 'sentence' in the Sentencing Act s 133(1)(b) - Discretion in the Sentencing Act s 136(2)(b) to make any order

Legislation:

Crimes Act 1958 (Vic), s 566
Criminal Appeals Act 2004 (WA), s 6, s 14, s 23
Interpretation Act 1984 (WA), s 5
Road Safety Act 1986 (Vic)
Road Traffic Act 1974 (WA), s 64, s 106
Sentencing Act 1995 (WA), s 39, s 44, s 131, s 133, s 135, s 136

Result:

Appeal allowed
8month motor driver's licence disqualification order set aside

Category: A

Representation:

Counsel:

Appellant:     Ms K I McDougall
First Respondent           :     Ms K J Dodd
Second Respondent       :     Ms K J Dodd

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

Creed v Dudley [1984] WAR 344
Griffiths v The Queen (1977) 137 CLR 293
R v Novakovic [2007] VSCA 145
R v Warfield (1994) 34 NSWLR 200
Schamotta v The Queen [2002] WASCA 262
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119

JENKINS J:

The decision under appeal

On 23 August 2010 in the Magistrates Court at Bunbury the appellant pleaded guilty to one count of breaching a community order. The magistrate fined the appellant $200 and also re‑sentenced the appellant for the offence of driving a motor vehicle with a blood alcohol content exceeding 0.08, being the offence for which the community order was imposed. Her Honour re‑sentenced the appellant to a fine $1,000 and disqualified him from holding or obtaining a motor driver's licence (MDL) for a period of 8 months. The appellant appeals against the imposition of the disqualification order on re‑sentencing on the basis that he had already served a disqualification period for the offence of exceeding .08 which was imposed when he was originally sentenced for that offence.

Grounds of appeal

On 23 September 2010 I granted leave to appeal on the following grounds of appeal against sentence:
1.The learned Magistrate made an error of law by considering herself bound to impose an additional period of 8 months disqualification when making an order under s 133 of the Sentencing Act 1995 for the breach of Community Based…

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 Barnes v Cooper

Details

AGLC: Barnes v Cooper [2011] WASC 5
Case: [2011] WASC 5
Decision Date: 11 JANUARY 2011

CaseChat Overview and Summary

The case of Barnes v Cooper was an appeal against a sentence imposed by the Magistrates Court of Victoria. The appellant, Barnes, had been found guilty of breaching a community based order and sentenced to imprisonment and disqualified from driving for a period of three months. Barnes appealed on the ground that the magistrate had no power to impose the disqualification order as part of the sentence under section 133(1)(b) of the Sentencing Act. The respondent, Cooper, argued that the magistrate had the power to make such an order under section 136(2)(b) of the Sentencing Act, which provides for the court to make any order it considers appropriate in the circumstances.

The court was required to determine the meaning of 'sentence' in section 133(1)(b) of the Sentencing Act and whether it included the power to impose a disqualification order under the Road Traffic Act. The court also had to consider whether the magistrate had the discretion to make any order under section 136(2)(b) of the Sentencing Act. The court noted that the power to impose a disqualification order under the Road Traffic Act was not included in the definition of 'sentence' in section 133(1)(b) of the Sentencing Act. However, the court held that the magistrate had the discretion to make any order under section 136(2)(b) of the Sentencing Act, which included the power to impose a disqualification order.

The court held that the magistrate had the power to impose a disqualification order as part of the sentence under section 136(2)(b) of the Sentencing Act. The court found that the magistrate had exercised their discretion appropriately in making the order and that it was an appropriate order in the circumstances. The court rejected Barnes' argument that the magistrate had no power to impose the disqualification order as part of the sentence. The court held that the magistrate had the discretion to make any order under section 136(2)(b) of the Sentencing Act and that the disqualification order was an appropriate order in the circumstances.

The appeal was dismissed, and the original sentence was upheld. The court held that the magistrate had the power to impose the disqualification order as part of the sentence under section 136(2)(b) of the Sentencing Act and that the order was appropriate in the circumstances. The court found that the magistrate had exercised their discretion appropriately in making the order. The original sentence, including the disqualification order, was upheld.

Orders