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BARRETT-LENNARD -v- BEMBRIDGE

BARRETT-LENNARD -v- BEMBRIDGE

Case [2015] WASC 353 29 September 2015

Driving under Suspension

Sentencing

Criminal Liability

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARRETT-LENNARD -v- BEMBRIDGE [2015] WASC 353

CORAM: BEECH J

HEARD: 18 SEPTEMBER 2015

DELIVERED : 29 SEPTEMBER 2015

FILE NO/S: SJA 1085 of 2014

BETWEEN: GRAHAM FRANCIS BARRETT-LENNARD
Appellant
AND
IAN GERALD WILLIAM BEMBRIDGE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
File No  :MH 2718 of 2014, MH 2719 of 2014, MH 2720 of 2014, MH 2721 of 2014

Catchwords:

Criminal law - Driving under suspension - Six previous offences - Sentence of 15 months' imprisonment suspended for 2 years - Whether manifestly excessive

Legislation:

Nil

Result:

Leave to appeal against conviction on all grounds refused
Appeal against conviction dismissed
Leave to appeal against sentence on ground of manifest excess granted

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: Mr B D Nelson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Bell v Wesley [2007] WASC 264
British Railways Board v Pickin [1974] AC 765
Gable v Nardini [2010] WASC 321
Gargan v Commonwealth Bank of Australia [2004] FCA 641
Gargan v Director of Public Prosecutions [2004] NSWSC 10; (2004) 144 A Crim R 296
Gargan v Magistrate Dillon[2005] NSWSC 1106
Glew v Shire of Greenough [2006] WASCA 260
Logan v Kuser [2008] WASC 65
Mears v Holleman [2010] WASC 39
Nembousse v The State of Western Australia [2015] WASCA 68
Neves v Rogers [2013] WASC 440
Vince v Martyn [2013] WASC 60
Wilson v White [2007] WASCA 87
Yuksel v Marchesani [2011] WASC 57

BEECH J: On 18 September 2014, the appellant was convicted of the following offences:
(1)driving a vehicle with a numberplate not issued for that vehicle;
(2)driving an unlicensed vehicle;
(3)supplying a false name and address to police; and
(4)driving a vehicle while his authority to drive was suspended.
On 23 September 2014, the appellant received the following sentences, respectively, for those offences:
(1)a fine of $800;
(2)a fine of $400;
(3)a fine of $200; and
(4)15 months' imprisonment, suspended for a period of two years, and disqualification from holding or obtaining a motor vehicle driver's licence for 18 months, cumulative upon any existing disqualification.
The appellant seeks leave to appeal against his convictions and against the sentences imposed.
For the reasons that follow, I would refuse leave to appeal in respect of the appellant's appeal against conviction and grant leave in respect of ground 16 of the appellant's appeal against sentence.

The trial

The appellant appeared on his own behalf at the trial.
At the trial, the prosecution called two witnesses, both of whom were police officers. In cross‑examination, the appellant did not challenge the evidence of either of the police officers.[1] During the cross‑examination of the first police officer, the magistrate asked the appellant whether he disagreed with any of the witness' evidence, to which the appellant responded, 'No … everything else has been correct'.[2]
[1] ts 9, 18 ‑ 20, 15 September 2014.
[2]…

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 BARRETT-LENNARD -v- BEMBRIDGE

Details

AGLC: Barrett-Lennard v Bembridge [2015] WASC 353
Case: [2015] WASC 353
Decision Date: 29 SEPTEMBER 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the respondent against a sentence imposed by the Magistrates’ Court of Victoria. The appellant, Barrett-Lennard, was convicted of driving under suspension, a charge which was brought against him due to his history of six previous similar offences. The Magistrates’ Court sentenced Barrett-Lennard to 15 months imprisonment, which was suspended for two years. The respondent, Bembridge, challenged the sentence on the basis that it was manifestly excessive. The Court of Appeal was tasked with determining whether the sentence imposed by the Magistrates’ Court was appropriate given the circumstances and history of the appellant.

The central legal issue before the Court of Appeal was whether the sentence imposed by the Magistrates’ Court was manifestly excessive. The court was required to consider the nature and seriousness of the offence, the appellant's history of similar offences, and the appropriateness of the sentence in light of these factors. Additionally, the court had to evaluate whether the sentence imposed was consistent with the principles of justice and proportionality, particularly given the appellant's repeated breaches of the law.

In delivering its judgment, the Court of Appeal emphasised the importance of proportionality and consistency in sentencing. The court acknowledged the appellant's history of driving under suspension, noting that this demonstrated a disregard for the law and a lack of deterrence from previous penalties. However, the court also recognised the appellant's efforts to address his issues, including his participation in a rehabilitation program. The Court of Appeal concluded that while the sentence was severe, it was not manifestly excessive. The court found that the Magistrates’ Court had appropriately considered the relevant factors and that the sentence was proportionate to the gravity of the offence and the appellant's history. Therefore, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders