Beales v Morris - [2010] WASC 383

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BEALES -v- MORRIS [2010] WASC 383

CORAM: MAZZA J

HEARD: 3 DECEMBER 2010

DELIVERED : 16 DECEMBER 2010

FILE NO/S: SJA 1068 of 2010

BETWEEN: CHERYL CHRISTINE BEALES
Appellant
AND
RUSSELL STEWART MORRIS
LOUIS GERMAINE LANTERNIER
ALBERTO MIGUEL MEDRANO
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE TARR
File No  :PE 59050 of 2008, PE 17955-6 of 2009, PE 11860-2 of 2010, PE 32081 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether magistrate should have exercised discretion not to activate suspended term of imprisonment - Whether first limb of totality principle infringed

Legislation:

Sentencing Act 1995 (WA), s 76, s 80

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr A D Sullivan

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

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

Brown v The State of Western Australia [2009] WASCA 74
Gavin v The Queen (1992) 6 WAR 195
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Trew v The State of Western Australia [2004] WASCA 155

MAZZA J: This is an appeal against sentences imposed by a magistrate in the Perth Magistrates Court on 4 May 2010.
On that day, the appellant pleaded guilty to giving a false name to police (11860 of 2010), driving under the influence of alcohol (11861 of 2010), and driving under suspension (11862 of 2010). These offences were committed on 8 January 2010. The appellant also pleaded guilty to a count of breach of bail (32081 of 2010). This offence was committed on 11 February 2010. All of these offences were committed in breach of a community based order and suspended imprisonment orders which were made in the Perth Magistrates Court on 26 May 2009. On that day, the appellant was placed on a 12‑month community based order for an offence of aggravated assault occasioning bodily harm. In relation to offences of driving under suspension and refusing a breath test, she was imprisoned for 7 months, suspended for 12 months.
The sentences and orders made by his Honour on 4 May 2010 are as follows:

Charge No	Date of offence	Description	Max penalty	Sentence	Concurrent or cumulative
59050/08	29/9/08	Aggravated assault occasioning bodily harm	3 years' imprisonment and fine $36,000 (summary conviction penalty)	CBO cancelled, 3 months' imprisonment and $200 fine	Cumulative
17955/09	28/2/09	Refuse breath test	Fine $2,000-$5,000 or 18 months' imprisonment (subsequent offence)	7 months' imprisonment	Cumulative
17956/09	28/2/09	Driving under suspension	Fine between $1,000-$4,000 and 18 months' imprisonment (subsequent offence)	7 months' imprisonment	Concurrent
11860/10	8/1/10	False name	Fine $600	Fine $300

11861/10

8/1/10

Driving under the influence of alcohol (reading 0.199%)

Fine between $2,000-$5,000 or 18 months' imprisonment (subsequent offence)

6 months' imprisonment

MDL life disqualification

Cumulative

11862/10

8/1/10

Driving under suspension

Fine between $1000-$4000 and 18 months' imprisonment (subsequent offence)

3 months' imprisonment

12 months MDL disqualification

Concurrent

32081/10

11/2/10

Breach of bail

Fine $10,000…

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 Beales v Morris

Details

AGLC: Beales v Morris [2010] WASC 383
Case: [2010] WASC 383
Decision Date: 16 DECEMBER 2010

CaseChat Overview and Summary

Beales was found guilty of a number of charges and sentenced to a suspended term of imprisonment. When Beales subsequently breached the conditions of his parole, the magistrate activated the suspended sentence. Beales appealed the decision to activate the sentence, arguing that the magistrate should not have exercised the discretion to activate the suspended term of imprisonment. Morris, the prosecutor, defended the decision. The appeal was heard in the Supreme Court of Queensland. The central legal issue was whether the magistrate should have exercised the discretion to activate the suspended term of imprisonment and, if not, whether the decision infringed the first limb of the totality principle.

The court considered that the decision to activate the suspended sentence was within the magistrate's discretion. The court held that the totality principle did not prevent the magistrate from exercising this discretion. The court found that the totality principle was concerned with ensuring that the cumulative effect of the sentences did not exceed what was proportionate to the offending. The court concluded that the sentence was proportionate to the offending and did not infringe the first limb of the totality principle. Therefore, the appeal was dismissed.

The court did not make any specific orders, but the decision to activate the suspended sentence was upheld. The court's reasoning and outcome provide guidance to magistrates when exercising their discretion to activate suspended sentences and ensure that the sentences are proportionate to the offending.

Orders