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Cunningham v Walsh

Cunningham v Walsh

Case [2000] WASCA 201 4 August 2000

Appeal

Sentencing

Terms of Imprisonment

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CUNNINGHAM -v- WALSH & ORS [2000] WASCA 201

CORAM: HASLUCK J

HEARD: 12 JULY 2000

DELIVERED : 4 AUGUST 2000

FILE NO/S: SJA 1051 of 2000

BETWEEN: JEFFREY JOHN CUNNINGHAM
Appellant
AND
MANUS BENEDICT WALSH
ZELKJO DELIC
KEVIN EDWARD FERGERSON
JESS OLSEN
JASON CRAGG
Respondents

Catchwords:

Sentencing Act - Appeal against sentence under Justices Act - Terms of imprisonment for receiving and driving - Magistrate's refusal to order eligibility for parole - Matters relevant to parole

Legislation:

Criminal Code, s 414

Justices Act 1902
Police Act1892, s 53(1)(b)
Road Traffic Act 1974, s 49(1)(a), s 49(2), s 60(1)

Sentencing Act 1995, s 6, s 39, s 43, s 89, s 93, s 95

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr E Shackleton
Respondents : Mr R Daily

Solicitors:

Appellant: Legal Aid Commission
Respondents : State Director of Public Prosecutions

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

Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Cardillo v Taylor [1999] WASCA 166
Heppener v The Queen, unreported; CCA SCt of WA; Library No 4669; 1 October 1982
Herbert v R, unreported; CCA SCt of WA; Library No 7676; 26 May 1989
House v The King (1936) 55 CLR 499
McLean v R [1999] WASCA 209
R v Grein [1989] WAR 178
R v Tait (1979) 46 FLR 386
Swain v R (1989) 41 A Crim R 214
Thompson v R (1993) 8 WAR 387
Veen v R (No 2) (1988) 77 ALR 385
Weng Keong Chan (1989) 38 A Crim R 337
Wongawol v R (1998) 101 A Crim R 350

Case(s) also cited:

Dobaj v The Queen [2000] WASCA 7
Garlett v The Queen [2000] WASCA 72
Lowndes (1997) 95 A Crim R 516
Lowndes v R (1999) 163 ALR 483
Nevermann (1989) 43 A Crim R 347
Shaw (1989) 39 A Crim R 343

HASLUCK J: The appellant obtained leave to appeal from part of the decision of his Worship Mr C Roberts given in the Court of Petty Sessions at Midland on 3 March 2000. The decision concerned various complaints in respect of which the learned Magistrate sentenced the appellant to 32 months' imprisonment without parole. Leave to appeal was granted on the ground that the learned sentencing Magistrate erred in law by failing to properly consider or to consider at all the appellant's eligibility for parole.
The appeal is brought pursuant to provisions of the Justices Act 1902 which allow to a Judge of the Supreme Court powers to dismiss the appeal, or set aside, quash or vary the decision of the Magistrate and to substitute a decision that he ought to have made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.
The appellant was convicted upon his own pleas of guilty to one count of driving whilst legally disentitled to hold a motor driver's licence contrary to s 49(1)(a) and…

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 Cunningham v Walsh

Details

AGLC: Cunningham v Walsh [2000] WASCA 201
Case: [2000] WASCA 201
Decision Date: 4 AUGUST 2000

CaseChat Overview and Summary

The case of Cunningham v Walsh involved the appellant, Cunningham, who had been sentenced by the Magistrates' Court to terms of imprisonment for receiving and driving a stolen vehicle. Cunningham appealed against his sentence, arguing that the Magistrate had erred in law by not ordering that he would be eligible for parole after serving one-third of his sentence. The appeal was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the Magistrate had correctly exercised his discretion in determining the terms of Cunningham's imprisonment, specifically in relation to the eligibility for parole. The court had to consider the relevant statutory provisions under the Sentencing Act and the matters that the Magistrate should have taken into account when deciding parole eligibility.

The Supreme Court found that the Magistrate had indeed erred in law by not considering the matters relevant to parole eligibility as outlined in the Sentencing Act. The court emphasised that the Magistrate must consider the nature and circumstances of the offence, the offender's background, and any other relevant matters before making a decision on parole eligibility. The court held that the Magistrate's failure to consider these factors constituted a legal error, and the appeal was allowed. The case was remitted back to the Magistrates' Court for reconsideration of the terms of Cunningham's sentence, with proper consideration of parole eligibility.

The final orders of the court were that the appeal against sentence was allowed and the matter was remitted to the Magistrates' Court for reconsideration of the terms of Cunningham's imprisonment, with proper regard to the matters relevant to parole eligibility.

Orders