Brooks v Blackley - [2009] WASC 274

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BROOKS -v- BLACKLEY [2009] WASC 274

CORAM: McKECHNIE J

HEARD: 27 AUGUST 2009

DELIVERED : 18 SEPTEMBER 2009

FILE NO/S: SJA 1059 of 2009

BETWEEN: KYLE REECE BROOKS
Appellant
AND
DANIEL GORDON BLACKLEY
PAUL CARROLL
MICHAEL JEFFREY WITHERS
DAVID JOHN CLEMANS
SCOTT JOSEPH OWEN
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 6265 of 2008, HV 24 of 2009, BU 715 of 2009, BU 713 of 2009, BU 712 of 2009, BU 889 of 2009, BU 2813 of 2009, BU 2814 of 2009, BU 2680 of 2009

Catchwords:

Road traffic - Sentence - Repeated offending of driving under suspension - Need for general and personal deterrence - Whether minimum period before parole can be taken into account - Whether sentence can be increased because of time already spent in custody

Legislation:

Nil

Result:

Appeal allowed
Total sentence of 20 months reduced to sentence of 12 months

Category: D

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondents : Ms K A T Pedersen

Solicitors:

Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia

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

Maroney v The State of Western Australia [2006] WASCA 130

McKECHNIE J: On 11 May 2009 the appellant appeared in the Magistrates Court for sentence on a series of charges including a number of charges of driving under suspension. Some of those offences had occurred after the appellant had been placed on a suspended sentence of imprisonment for 8 months, suspended for 12 months, (on 12 January 2009) for no motor driver's licence for an offence committed on 9 January 2009. The magistrate activated the suspended sentence and imposed other sentences making a total of 20 months' imprisonment on the appellant with an order for parole.
The appellant appeals on a single ground as follows:
The aggregate sentence of 20 months imprisonment imposed by the Learned Magistrate was disproportionate to the overall criminality involved in the offences committed by the Appellant when viewed in their entirety and in regard to all the circumstances of the case, including those personal to the Appellant.
Particulars
(a)The Appellant's youth.
(b)The Appellant's early pleas of guilty.
(c)The Appellant had been imprisoned once before when he was 18 for 4 months in Queensland with his Western Australian record of convictions consisting entirely of traffic offences.
(d)The Appellant's loss of employment, accommodation difficulties and lack of family support contributing to the Appellant's offending behaviour.
(e)The Appellant never having been subject to supervision in any jurisdiction, as referred to in the pre sentence report.
(f)The accumulation of 4 sentences of imprisonment for driving under suspension, making an aggregate of 20 months imprisonment, was too severe when having regard to the range of sentences customarily imposed for driving under suspension offences.
The charges which the appellant faced were as follows:

Prosecution No

Offence

Sentence

BU 6265/08

(26/10/08)

Driving under suspension

4 months' imprisonment cumulative with…

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 Brooks v Blackley

Details

AGLC: Brooks v Blackley [2009] WASC 274
Case: [2009] WASC 274
Decision Date: 18 SEPTEMBER 2009

CaseChat Overview and Summary

Brooks appealed against his sentence, arguing it was excessive given his age and circumstances. The primary dispute was the sentence imposed for repeated driving under suspension, which the defendant argued was excessively punitive and did not adequately balance the need for general and personal deterrence. The legal issues before the court were whether the sentence could be increased due to the defendant's prior convictions and whether the minimum period before parole eligibility could be considered in the sentencing process. The court had to assess the balance between deterrence and rehabilitation, taking into account the defendant's personal circumstances and the need to avoid excessive punishment.

The court considered the principles of sentencing for repeat offenders and the importance of both general and specific deterrence. It noted that while the defendant's repeated offending warranted a significant penalty, the sentence should not be so severe as to be disproportionate. The court found that while the minimum period before parole could be considered, it should not be the sole factor leading to an increased sentence. Additionally, the court held that time already spent in custody should not result in an increased sentence, as it could lead to double counting of the same period of detention. The appeal was allowed, and the total sentence was reduced from 20 months to 12 months.

Orders

Orders of the court

Appeal allowed Total sentence of 20 months reduced to sentence of 12 months

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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