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Bell v Wesley

Bell v Wesley

Case [2007] WASC 264 8 November 2007

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BELL -v- WESLEY [2007] WASC 264

CORAM: JOHNSON J

HEARD: 12 JUNE 2007

DELIVERED : 9 NOVEMBER 2007

FILE NO/S: SJA 1003 of 2007

BETWEEN: ROBERT RANKIN BELL
Appellant
AND
CHRISTOPHER JAMES WESLEY
First Respondent
MARC WILLIAM O'NEILL
Second Respondent
AMITY HUDSON
Third Respondent
DWAYNE ANDRE FRANCIS SKEHAN
Fourth Respondent
JOHN GEOFFREY DORRINGTON
Fifth Respondent
LEE ANN SIMPSON
Sixth Respondent
JASON ROBERT DAINES
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E CAMPIONE
File No  :PH 1722 of 2003, PH 1520 of 2006, PH 1521 of 2006, PH 1522 of 2006, PH 1523 of 2006, PH 1524 of 2006, PH 1525 of 2006, PH 1526 of 2006, PH 1760 of 2006, PH 1847 of 2006, PH 2032 of 2006, PH 2033 of 2006, BM 677 of 2004

Catchwords:

Multiple driving under suspension charges - Reduction for pleas of guilty - Whether individual sentences excessive - Whether total sentence excessive - Application of totality principle - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49(3)(a)(ii)
Sentencing Act 1995 (WA), s 8(2), s 8(4), s 80(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Ms K T Davis
First Respondent           :     Ms L A Eddy
Second Respondent      :     Ms L A Eddy
Third Respondent          :     Ms L A Eddy
Fourth Respondent        :     Ms L A Eddy
Fifth Respondent           :     Ms L A Eddy
Sixth Respondent          :     Ms L A Eddy
Seventh Respondent      :     Ms L A Eddy

Solicitors:

Appellant:     Legal Aid WA
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent          :     State Solicitor for Western Australia
Fourth Respondent        :     State Solicitor for Western Australia
Fifth Respondent           :     State Solicitor for Western Australia
Sixth Respondent          :     State Solicitor for Western Australia
Seventh Respondent      :     State Solicitor for Western Australia

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

Anderson v Heath [2005] WASC 253
Anderson v Stilwell [2006] WASC 257
Bates v Wheatley [2000] WASCA 38
Calway v Wiebe (Unreported, WASC, Library No 990001, 13 January 1999)
Chivers v The State of Western Australia [2005] WASCA 97
Dearnley v Damon [2007] WASC 124
Dinsdale v The Queen (2000) 202 CLR 321
Findlay v The State of Western Australia [2007] WASC 61
Fullgrabe v The State of Western Australia [2006] WASCA 138
Griffiths v The Queen (1977) 137 CLR 293
H v The State of Western Australia [2006] WASCA 53
Hall v The Queen (1999) 21 WAR 364
Jarvis v The Queen (1993) 20 WAR 201
Karolides v The State of Western Australia [2006] WASCA 240
Kearney v Rinaudo [2007] WASC 104
Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998)
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASC 138
Mill v The Queen (1988) 166 CLR 59
Moody v French [2007] WASC 190
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Allpass (1993) 72 A Crim R…

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 Bell v Wesley

Details

AGLC: Bell v Wesley [2007] WASC 264
Case: [2007] WASC 264
Decision Date: 11/08/2007

CaseChat Overview and Summary

In the case of Bell v Wesley, the appellant, a driver with multiple prior convictions, was convicted and sentenced for driving under suspension on three separate occasions. The respondent, the Director of Public Prosecutions, brought the matter to the court on appeal to challenge the sentencing imposed by the lower court. The appellant contended that the sentences imposed for each offence were excessive and that the total sentence was also excessive, arguing that the court had failed to properly apply the principle of totality. The appeal was dismissed by the court.

The legal issues before the court were whether the sentences imposed for each offence were excessive and whether the total sentence was excessive. The court was also required to consider whether the lower court had applied the principle of totality correctly. The principle of totality refers to the need to consider the cumulative effect of multiple sentences to ensure that the overall punishment is not disproportionate. The court had to determine whether the lower court had appropriately balanced the individual sentences with the overall punishment.

The court found that the sentences imposed for each offence were not excessive, given the appellant's prior convictions and the need for general deterrence. The court also found that the total sentence was not excessive, as the lower court had considered the principle of totality and had imposed a sentence that was proportionate to the cumulative effect of the offences. The court held that the lower court had appropriately balanced the individual sentences with the overall punishment, taking into account the appellant's prior convictions and the need for general deterrence. The court found that the lower court had not erred in its application of the principle of totality.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Bell v Wesley [2007] WASC 264

Most Recent Citation

Logan v Kuser [2008] WASC 65

Cases Citing This Decision

Knights v Ward [2022] WASC 267
Citation 1 (Para 4)

…ffender. It will always be a matter for discretion to determine whether or not a particular sentence falls within an appropriate range: Bell v Wesley [2007] WASC 264 [37] ‑ [41]. It was with these considerations in mind that I observed in Gable v Nardini [34] that it was typical for convictions for driving whilst…
Sterle v Wyborn [2016] WASC 19
Citation 2 (Para 14)

…cular where there have been a large number of past offences. See, for example, Findlay v The State of Western Australia [2007] WASC 61; Bell v Wesley [2007] WASC 264 and Arcari v Christie [2007] WASC 298. In some of those cases multiple offences dealt with at the same time have attracted cumulative sentences: Ande…
BARRETT-LENNARD -v- BEMBRIDGE [2015] WASC 353
Citation 3 (Para 7)

…f persistent offences of driving under suspension, there is a strong need for both general deterrence and personal deterrence.[25] [25] Bell v Wesley [2007] WASC 264 [42] (Johnson J); Logan v Kuser [2008] WASC 65 [31] (Johnson J); Neves v Rogers [2013] WASC 440 [39].…
Neves v Rogers [2013] WASC 440
Citation 4 (Para 2)

…both general deterrence and personal deterrence.[11] The same can be said of persistent offences of driving with a ceased licence. [11] Bell v Wesley [2007] WASC 264 [42]; Logan v Kuser [2008] WASC 65 [31].…
Thomson v Brock [2013] WASC 289
Citation 5

…Abfahr v The State of Western Australia [2013] WASCA 87 Anderson v Stilwell [2006] WASC 257 Arcari v Christie [2007] WASC 298 Bell v Wesley [2007] WASC 264 Findlay v The State of Western Australia [2007] WASC 61 Gable v Nardini [2010] WASC 321 Hubbard v Fisher [2001] WASCA 182 Patterson v Cutler [2010] WASC 316 Sh…
Lyon v Read [2012] WASC 96
Citation 6

…Anderson v Heath [2005] WASC 253 Arcari v Christie [2007] WASC 298 Bell v Wesley [2007] WASC 264 Birch v The State of Western Australia [2011] WASCA 101 Boyle v The Queen (1987) 34 A Crim R 202 Brewer v Bayens [2002] WASCA 37 Chan v The Queen (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 Dixon v S…
Gable v Nardini [2010] WASC 321
Citation 7 (Para 6)

…l to 10 months' imprisonment. • Bell v Wesley [2007] WASC 264 ‑ four convictions of driving under suspension and other associated offences with a prior record of 10 convictions for driving under suspension for an offender on a suspended sentence for an earlier DUS conviction ‑ a total effective period of 36 months…
Kopp v Love [2010] WASC 332
Citation 8 (Para 6)

…ng is an art rather than a science and that there must be latitude for different opinions which can affect significantly the outcome: Bell v Wesley [2007] WASC 264 [37] ‑ [41] and that an appeal court should not approach an appeal with regard to sentence as any form of arithmetical or mathematical assessment. In t…
Patterson v Cutler [2010] WASC 316
Citation 9 (Para 4)

…ied with considerable care': Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42] (Miller J) (referred to with approval in Bell v Wesley [2007] WASC 264; (2007) 180 A Crim R 122 [38] (Johnson J)).…
Sheiner v Roberts [2009] WASC 281
Citation 10

…2009] WASC 143 Anderson v Stilwell [2006] WASC 257 Austin v Grapes [2004] WASCA 102 Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206 Bell v Wesley [2007] WASC 264; (2007) MVR 134 Calway v Wiebe (unreported, WASC, Library No 990001, Miller J, 13 January 1999) Challis v Davison [2008] WASC 198 Chinnery v Hansen […
Logan v Kuser [2008] WASC 65
Citation 11

…Aconi v The Queen [2001] WASCA 211 Anderson v Heath [2005] WASC 253 Bell v Wesley (2007) 49 WVR 134 Boyle v The Queen (1987) 34 A Crim R 202 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Damiani v The State of Western Australia (2006) 165 A Crim R 358 Dearnley v Damon [2007] WASC 124 Dinsdale v The Queen (2000)…

See all citing cases →

Cases Cited

Marston v The King [2022] VSCA 253
Citation 1 (Para 14)

…see Hall v The Queen (1999) 21 WAR 364 [34] (Murray J); R v Holcroft [1997] 2 Qd R 392, 397; R v Buckman (1988) 47 SASR 303, 304. In R v Marston (1993) 60 SASR 320, 322 King CJ adopted this principle and added: It is of great importance that the courts adhere to that principle. Departure from it by the nonrevocation…
R v Buckman [2016] QCA 176
Citation 2 (Para 14)

…uspended term of imprisonment be served: see Hall v The Queen (1999) 21 WAR 364 [34] (Murray J); R v Holcroft [1997] 2 Qd R 392, 397; R v Buckman (1988) 47 SASR 303, 304. In R v Marston (1993) 60 SASR 320, 322 King CJ adopted this principle and added: It is of great importance that the courts adhere to that principle…
Moody v French [2007] WASC 190
Citation 3 (Para 8)

…In Moody v French [2007] WASC 190 [82] I made the following comment: As to the proposition that sentences of 14 months for driving under suspension are a rarity, even for serial offenders, I have on other occasions commented adversely on the usefulness of schedules of this type because, in my view, they present a…
McDonald v White [2007] WASC 138
Citation 4 (Para 4)

…e part of the same driving incident and could have been considered part of a single transaction justifying a concurrent penalty: see McDonald v White [2007] WASC 138 [131]; R v Faithfull [2004] WASCA 39 [28] (McLure J). Alternatively, the total criminality could have been considered to be less than if the two offe…
Dearnley v Damon [2007] WASC 124
Citation 5 (Para 13)

…rotect the public, the primary emphasis when imposing sentence for driving under suspension must be specific and general deterrence: Dearnley v Damon [2007] WASC 124 [49]; Calway v Wiebe (Unreported, WASC, Library No 990001, 13 January 1999) 10 ‑ 11 (Miller J); Krakouer v Durka (Unreported, WASC, Library No 980595…
Kearney v Rinaudo [2007] WASC 104
Citation 6 (Para 1)

…The decision of Hasluck J in Kearney v Rinaudo [2007] WASC 104 was also relied upon by the appellant. In that case the appellant pleaded guilty to two separate offences of driving under suspension, the second of which was committed whilst the appellant was on a pre‑sentence order for the first offence. The appella…
Findlay v The State of Western Australia [2007] WASC 61
Citation 7 (Para 3)

…The authorities referred to by his Honour were Findlay v The State of Western Australia [2007] WASC 61 Anderson v Stilwell [2006] WASC 257; Rossiter v Francisty [2005] WASC 270 and Anderson v Heath [2005] WASC 253. Having considered these cases, Hasluck J concluded that the decision Findlay and in Anderson sugges…
Ryder v Abbott [2007] WASC 41
Citation 8 (Para 21)

…te that the figure of 20% ‑ 30%, identified by counsel for the appellant, is the range of reduction for an early plea of guilty: see Ryder v Abbott [2007] WASC 41 [34] (Templeman J); H v The State of Western Australia per Steytler P. In Chivers v The State of Western Australia [2005] WASCA 97 [17], Steytler P not…
Anderson v Stilwell [2006] WASC 257
Citation 9 (Para 3)

…The authorities referred to by his Honour were Findlay v The State of Western Australia [2007] WASC 61 Anderson v Stilwell [2006] WASC 257; Rossiter v Francisty [2005] WASC 270 and Anderson v Heath [2005] WASC 253. Having considered these cases, Hasluck J concluded that the decision Findlay and in Anderson suggest…
Karolides v The State of Western Australia [2006] WASCA 240
Citation 10 (Para 7)

…In Karolides v The State of Western Australia [2006] WASCA 240 [5] McLure JA observed that there are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard…
Fullgrabe v The State of Western Australia [2006] WASCA 138
Citation 11 (Para 20)

…he magistrate is obliged to mention, as is clear from the terms of s 8(4) of the Sentencing Act 1995 : see Fullgrabe v The State of Western Australia [2006] WASCA 138 [28] ‑ [29] (Martin CJ).…
H v The State of Western Australia [2006] WASCA 53
Citation 12 (Para 18)

…urt reduces the sentence because of a mitigating factor, the court must state that fact in open court. However, in H v The State of Western Australia [2006] WASCA 53 [10] Steytler P noted that the fact that the requirement of s 8(4) has been overlooked, as opposed to the existence of the plea itself, will not be a…
Anderson v Heath [2005] WASC 253
Citation 13 (Para 3)

…indlay v The State of Western Australia [2007] WASC 61 Anderson v Stilwell [2006] WASC 257; Rossiter v Francisty [2005] WASC 270 and Anderson v Heath [2005] WASC 253. Having considered these cases, Hasluck J concluded that the decision Findlay and in Anderson suggested that the imposition of cumulative 12 month te…
Chivers v The State of Western Australia [2005] WASCA 97
Citation 14 (Para 21)

…ee Ryder v Abbott [2007] WASC 41 [34] (Templeman J); H v The State of Western Australia per Steytler P. In Chivers v The State of Western Australia [2005] WASCA 97 [17], Steytler P noted that the earlier the plea is made, the greater the mitigation. It is also the case that the amount of the reduction is discretio…
Mason v Morrison [2004] WASCA 181
Citation 15 (Para 3)

…ities involving offenders with substantial records of conviction for driving under suspension. One such authority is the decision in Mason v Morrison [2004] WASCA 181 where a suspended sentence of 12 months' imprisonment was set aside and a sentence of 9 months' imprisonment imposed for both a twelfth conviction of…
Tulloh v The Queen [2004] WASCA 169
Citation 16 (Para 9)

…ted and the personal circumstances of the accused which can significantly affect the sentencing outcome. As Miller J observed in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42]: The cases referred to by counsel for the applicant … do no more than confirm the cautionary observations of Kennedy J in…
R v Faithfull [2004] WASCA 39
Citation 17 (Para 4)

…nd could have been considered part of a single transaction justifying a concurrent penalty: see McDonald v White [2007] WASC 138 [131]; R v Faithfull [2004] WASCA 39 [28] (McLure J). Alternatively, the total criminality could have been considered to be less than if the two offences were committed on separate occas…
Dinsdale v The Queen [2000] HCA 54
Citation 18 (Para 4)

…ison [20]. Sentences imposed on a successful Crown appeal are commonly less than those considered appropriate at first instance: Dinsdale v The Queen (2000) 202 CLR 321 [62]; R v Allpass (1993) 72 A Crim R 561. Further, the two offences were part of the same driving incident and could have been considered part of a s…
Bates v Wheatley [2000] WASCA 38
Citation 19 (Para 20)

…that the magistrate was aware that it was a plea of guilty and took it into account: Findlay v The State of Western Australia [32]; Bates v Wheatley [2000] WASCA 38 [33], [36]. It is also the case that it is only the fact that the sentence is to be reduced by reason of a mitigating factor which the magistrate is…
Hall v The Queen [1999] WASCA 225
Citation 20 (Para 14)

…pended sentence has been breached by re‑offending, a court ought to order that the suspended term of imprisonment be served: see Hall v The Queen (1999) 21 WAR 364 [34] (Murray J); R v Holcroft [1997] 2 Qd R 392, 397; R v Buckman (1988) 47 SASR 303, 304. In R v Marston (1993) 60 SASR 320, 322 King CJ adopted this pr…
Postiglione v the Queen [1997] HCA 26
Citation 21 (Para 21)

…termining that amount which will be respected by appellate courts: see H v The State of Western Australia [9] (Steytler P); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336.…
Mill v The Queen [1988] HCA 70
Citation 22 (Para 6)

…n J noted that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences: see also Mill v The Queen (1988) 166 CLR 59. Anderson J referred to the totality principle in the following terms: The general rule that individual crimes must be punished proportionately to th…
Rossiter v Francisty [2005] WASC 270
Citation 23 (Para 3)

…ties referred to by his Honour were Findlay v The State of Western Australia [2007] WASC 61 Anderson v Stilwell [2006] WASC 257; Rossiter v Francisty [2005] WASC 270 and Anderson v Heath [2005] WASC 253. Having considered these cases, Hasluck J concluded that the decision Findlay and in Anderson suggested that the…
Griffiths v The Queen [1977] HCA 44
Citation 24 (Para 4)

…r separate offences manifest error. The State was the appellant in Mason v Morrison and hence the principles applicable to Crown appeals applied: see Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ). This fact was expressly referred to by Miller J in his reasons: Mason v Morrison [20]. Sentences imposed on a successf…
Jarvis v The Queen (1993) 20 WAR 201
Citation 25 (Para 5)

…der the substantially increased severity of a total sentence of 3 years. The basis of this proposition is the decision of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207 where his Honour stated that the reductions commonly made pursuant to the totality principle reflect the fact that the severity of a term of imp…

Legislation Cited

Road Traffic Act 1974 (WA) 49(1), 49(1)(a), 49(3)(a)(ii), 53(1)(a)
5 mentions (from Para 2)
Sentencing Act 1995 (WA) 8(2)
2 mentions (from Para 3)
Bail Act 1982 (WA) 51(1)
1 mention
Misuse of Drugs Act 1981 (WA) 6(2)
1 mention
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
1 mention (from Para 2)