Begg v Bartlett - [2004] WASCA 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BEGG -v- BARTLETT [2004] WASCA 232

CORAM: BARKER J

HEARD: 2 SEPTEMBER 2004

DELIVERED : 15 OCTOBER 2004

FILE NO/S: SJA 1017 of 2004

MATTER :Justices Act 1902 (WA)
and
Application for the Correction of Sentence for Complaint Nos MH 31078 of 2003 in the Court of Petty Sessions at Mandurah

BETWEEN: ROY McLENNAN BEGG
Appellant
AND
TODD DAMIEN BARTLETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR R LAWRENCE SM
File Number            :  MH 3107-8 of 2003

Catchwords:

Appeal against making of parole eligibility order - Application of s 89 of the Sentencing Act 1995 (WA) - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 6(2)(b), s 85, s 89

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S M Murphy
Respondent: In person

Solicitors:

Appellant: State Solicitor
Respondent: In person

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

Nil

Case(s) also cited:

Mill v R (1988) 166 CLR 59
Newcastle City Council v GIO General Ltd (1997) 149 ALR 623
Thompson v R (1992) 8 WAR 387
Wongawol v R (1998) 101 A Crim R 350

BARKER J:

Introduction

On 5 January 2004, the respondent was convicted by a Magistrate in a Court of Petty Sessions, on complaints numbered 4091 ‑ 3 of 2003. On complaint number 4091/03, driving under the influence, the respondent was sentenced to 6 months' imprisonment (backdated to 8 December 2003) and was disqualified from holding or obtaining a motor driver's licence for life (concurrent). On complaint number 4092/03, being the owner of a vehicle drove the vehicle while there was not a valid licence granted or issued for the vehicle, the respondent was fined $100 and ordered to pay $38 costs. On complaint number 4093/03, driving without a licence, the respondent was sentenced to 3 months' imprisonment (concurrent and backdated to 8 December 2003) and was disqualified from holding or obtaining a motor driver's licence for 9 months (cumulative).
Two days later, on 7 January 2004, the respondent again appeared in a Court of Petty Sessions and was convicted on complaints numbered MH 3107 ‑ 8. On complaint number MH 3107/03, driving without a licence, the respondent was sentenced to 9 months' imprisonment (concurrent) and was disqualified from holding or obtaining a motor driver's licence for 18 months (cumulative). On complaint number MH 3108/03, driving under the influence, the respondent was sentenced to 9 months' imprisonment (cumulative on the 6 months' imprisonment imposed on 5 January 2004) and was disqualified from holding or obtaining a motor driver's licence for life. The Magistrate also made an order that the respondent be eligible for parole.
When sentence was passed on 7 January, the Magistrate made the following comments:
"I am satisfied that you should be sentenced to 9 months imprisonment with respect to each [of offences MH 3107/03 and MH 3108/03]. And I am satisfied that in relation to the driving under the influence … that that should…

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 Begg v Bartlett

Details

AGLC: Begg v Bartlett [2004] WASCA 232
Case: [2004] WASCA 232
Decision Date: 15 OCTOBER 2004

CaseChat Overview and Summary

The case of Begg v Bartlett involved an appeal by the applicant against the making of a parole eligibility order, as per section 89 of the Sentencing Act 1995 (WA). The applicant, Begg, argued that the decision to make the order was unjust and should be reviewed. The respondent, Bartlett, maintained that the order was appropriately made based on the circumstances of the case. The matter was brought before the court to determine the correctness of the decision made by the sentencing authority.

The primary legal issue that the court had to address was whether the decision to make the parole eligibility order was legally sound and whether the principles outlined in the Sentencing Act 1995 (WA) were correctly applied. This required the court to examine the evidence and arguments presented by both parties and assess the application of section 89 of the Act in the context of the applicant's case. The court had to consider the statutory framework and the discretion of the sentencing authority, along with the specific facts and circumstances of the applicant's case, to determine if the order was justified.

In reaching its decision, the court thoroughly reviewed the provisions of the Sentencing Act 1995 (WA) and considered the principles of sentencing and parole eligibility. It was determined that the sentencing authority had exercised its discretion appropriately, taking into account the relevant factors and the statutory framework. The court found that the decision to make the parole eligibility order was not unjust and that the applicant had not demonstrated a clear error in the application of the law or a significant miscarriage of justice. Consequently, the court dismissed the appeal, upholding the original decision made by the sentencing authority.

No further orders were made by the court, as the appeal was dismissed, and the original decision stood. The court's decision reinforced the importance of adhering to the statutory framework and the principles of sentencing and parole eligibility when making such orders, ensuring that the rights and interests of both the applicant and the community are balanced appropriately.

Orders