BOWES -v- McCUTCHEON & ANOR [1999] WASCA 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 173
Published:	08/09/1999
Case No:	SJA:1071/1999	Heard:	24 AUGUST 1999
Coram:	MILLER J	Delivered:	24/08/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed Order for eligibility for parole
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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

CITATION : BOWES -v- McCUTCHEON & ANOR [1999] WASCA 173 CORAM : MILLER J HEARD : 24 AUGUST 1999 DELIVERED : 24 AUGUST 1999 PUBLISHED : 8 SEPTEMBER 1999 FILE NO/S : SJA 1071 of 1999 BETWEEN : PHILLIP ARTHUR BOWES

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…

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 Bowes v McCUTCHEON & ANOR

Details

AGLC: Bowes v McCUTCHEON & ANOR [1999] WASCA 173
Case: [1999] WASCA 173
Decision Date: 8 SEPTEMBER 1999

CaseChat Overview and Summary

The case of Bowes v McCutcheon & Anor arose in the context of a criminal sentencing dispute. The appellant, Bowes, challenged the refusal of the sentencing judge to order that he be eligible for parole after serving a specified period of his sentence. The respondent, McCutcheon, was one of the judges involved in the original sentencing. The matter was heard in the High Court of Australia.

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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