BOWES -v- McCUTCHEON & ANOR [1999] WASCA 173
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 173 | |
| 08/09/1999 | |||
| Case No: | SJA:1071/1999 | 24 AUGUST 1999 | |
| Coram: | MILLER J | 24/08/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order for eligibility for parole | ||
| PDF Version |
| Parties: | PHILLIP ARTHUR BOWES DAVID ANDREW McCUTCHEON ANNE MARIE DRANSFIELD |
Catchwords: | Criminal law Sentence Appeal against refusal to order parole eligibility Turns on own facts |
Legislation: | Criminal Code (WA) Road Traffic Act 1974 (WA) Sentencing Act 1995 |
Case References: | R v Maxwell (1998) 102 A Crim R 374 Swain v R (1989) 41 ACrimR 214 Thompson v R (1992) 8 WAR 387 Wongawol v R (1998) 101 ACrimR 350 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DAVID ANDREW McCUTCHEON
First Respondent
ANNE MARIE DRANSFIELD
Second Respondent
Catchwords:
Criminal law - Sentence - Appeal against refusal to order parole eligibility - Turns on own facts
Legislation:
Criminal Code (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995
(Page 2)
Result:
Appeal allowed
Order for eligibility for parole
Representation:
Counsel:
Appellant : Ms V M Williams
First Respondent : Mr N C Monahan
Second Respondent : Mr N C Monahan
Solicitors:
Appellant : Aboriginal Legal Service
First Respondent : State Crown Solicitor
Second Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
R v Maxwell (1998) 102 A Crim R 374
Swain v R (1989) 41 ACrimR 214
Thompson v R (1992) 8 WAR 387
Wongawol v R (1998) 101 ACrimR 350
Case(s) also cited:
Nil
(Page 3)
1 MILLER J : On 17 December 1998 the appellant was convicted in the Kellerberrin Court of Petty Sessions on his plea of guilty to an offence under section 49(1) of the Road Traffic Act 1974, committed on 18 July 1998 at Doodlakine. At that time the appellant was legally disentitled to hold a driver's licence. The appellant was remanded on bail to appear on 7 January 1999 in the Midland Court of Petty Sessions for sentence.
2 On 7 January 1999 the appellant was further convicted in the Midland Court of Petty Sessions on pleas of guilty of two offences of assault contrary to s 313 of the Criminal Code and an offence contrary to s 317 of the Code. Each of those assaults had been committed on 28 December 1998 at Langford. He was remanded in custody for a pre-sentence report. On 25 February 1999 he appeared in the Midland Court of Petty Sessions and was sentenced by the learned Magistrate for the offences of driving under suspension and assault in the following manner: (1) in relation to the driving under suspension on 18 July 1998 he was sentenced to 15…
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- Bowes v McCUTCHEON & ANOR [1999] WASCA 173
- Case
- [1999] WASCA 173
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the refusal to order parole eligibility after a certain period of imprisonment constituted a sentence that was manifestly inadequate or excessive. The court had to consider the principles of sentencing and the discretion available to judges in determining parole eligibility. The appellant argued that the refusal to order eligibility for parole was a form of sentence that should be reviewed by the appellate court, while the respondents contended that such decisions were within the exclusive domain of the original sentencing judge.
In delivering the judgment, the court held that the refusal to order parole eligibility was indeed a sentence that could be reviewed on appeal. The court emphasised that while the original sentencing judge has significant discretion in determining parole eligibility, this does not preclude the appellate court from reviewing the sentence if it is manifestly inadequate or excessive. The court found that the refusal to order parole eligibility after a specified period was a significant part of the appellant's overall sentence and should have been considered by the appellate court. Consequently, the appeal was allowed, and the court made an order for the appellant's eligibility for parole.
Orders
Orders of the court
Appeal allowed
Order for eligibility for parole
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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