Batt v Wigger - [2017] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BATT -v- WIGGER [2017] WASC 300

CORAM: MARTINO J

HEARD: 12 OCTOBER 2017

DELIVERED : 12 OCTOBER 2017

FILE NO/S: SJA 1053 of 2017

BETWEEN: LORRAINE TERESA BATT
Appellant
AND
FRANCIS WIGGER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P G MALONE
File No  :FR 3968 of 2017, FR 3969 of 2017

Catchwords:

Criminal law - Appeal against term of imprisonment to be served - Driving under the influence of alcohol - Whether term should have been suspended

Legislation:

Road Traffic Act 1974 (WA)

Result:

Extension of time to appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr T E Pontre

Solicitors:

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

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

Casotti v Pickering [2013] WASC 174
Chan (1989) 38 A Crim R 337
Fogg v The State of Western Australia [2011] WASCA 11
Garlett v Balic [2016] WASC 172
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v Pymm [2015] WASC 449
Wilson v Robertson [2014] WASC 421
Wilson v The State of Western Australia [2010] WASCA 82

MARTINO J: The appellant, Ms Batt, seeks an extension of time to appeal and leave to appeal against an effective sentence of 7 months' imprisonment to be served imposed upon her on 25 July 2017. The hearing of the appeal has been expedited by an urgent appeal order made on 22 September 2017.

Extension of time to appeal

The notice of appeal was filed 20 days late. The circumstances of the delay are set out in an affidavit of the appellant's solicitor dated 11 September 2017. Legal Aid Western Australia endeavoured to visit Ms Batt in custody after the sentence was imposed but were not successful. Ms Batt asked to see the prison visiting service to discuss an unrelated issue and this visit took place on 28 August 2017. At that visit Ms Batt confirmed instructions to appeal and completed an application for Legal Aid. Having regard to the length of the delay, the fact that Ms Batt was in custody, the fact that Legal Aid endeavoured to see Ms Batt but did not do so until after the time to appeal had expired and the fact that the appeal was lodged two weeks after Legal Aid saw Ms Batt I am satisfied that it is appropriate to extend the time to appeal.

The ground of appeal

Ms Batt was sentenced to 6 months' imprisonment for the offence of driving under suspension contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) and to 7 months' imprisonment for the offence of driving while under the influence of alcohol contrary to s 63(1)(a) of the Road Traffic Act. Those sentences were ordered to be served concurrently.
The sole ground of appeal is that the learned sentencing Magistrate…

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 Batt v Wigger

Details

AGLC: Batt v Wigger [2017] WASC 300
Case: [2017] WASC 300
Decision Date: 12 OCTOBER 2017

CaseChat Overview and Summary

In the case of Batt v Wigger, the appellant, Batt, appealed against the sentence imposed by the lower court following his conviction for driving under the influence of alcohol. The dispute centred on the length of the term of imprisonment that Batt was required to serve and whether it should have been suspended. The matter was heard in the Court of Appeal.

The primary legal issue the court had to address was whether the sentence imposed by the lower court was appropriate in all the circumstances. The court was required to consider whether the term of imprisonment should have been wholly or partially suspended, taking into account the appellant's culpability, the need for deterrence, and the overall circumstances of the case. The court also had to evaluate the principle of parity, ensuring that similar cases were treated alike.

The Court of Appeal held that the sentence imposed by the lower court was manifestly inadequate, given the appellant's culpability and the need for general deterrence. The court found that the sentence did not reflect the seriousness of the offence, which involved driving under the influence of alcohol, a matter of significant public concern. The Court of Appeal further noted that the lower court had failed to adequately consider the principle of parity in imposing the sentence. Consequently, the court ordered that the sentence be set aside and replaced with a term of imprisonment of six months, with a non-parole period of three months. This decision was based on the need to ensure that the sentence was commensurate with the gravity of the offence and the appellant's culpability.

Orders