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Dearnley v Damon

Dearnley v Damon

Case [2007] WASC 124 12 June 2007

Appeal

Denial of procedural fairness

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DEARNLEY -v- DAMON [2007] WASC 124

CORAM: JOHNSON J

HEARD: 26 MARCH 2007

DELIVERED : 12 JUNE 2007

FILE NO/S: SJA 1109 of 2006

BETWEEN: MICHAEL JEREMY DEARNLEY
Appellant
AND
JASON MARK DAMON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE A BLOEMEN
File No  :BM 1223 of 2004, BM 2103 of 2004

Catchwords:

Criminal law and procedure - Appeal - Sentence - Access to presentence report - Denial of procedural fairness - Court empowered to provide copy of presentence report to prosecution and defence - Sentencing options when suspended sentence breached - Transitional provisions

Legislation:

Criminal Appeals Act 2004 (WA), s 14(d)

Criminal Code (WA), s 317(1)
Criminal Procedure Act 2004 (WA), s 20(3)(iii), s 172
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Road Traffic Act 1974 (WA), s 49(1)(a)(iii)
Sentencing Act 1995 (WA), s 20, s 22, s 80
Weapons Act 1999 (WA), s 8(1)(b)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms D E Quinlan
Respondent: Ms M R Barone

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Aboriginal Legal Service

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

Bakdadi v O'Neill [2003] WASCA 267
Calway v Wiebe unreported, Sct of WA; Library No 990001; 13 January 1999
Cooper v Yates [2005] WASC 34
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 202 CLR 321
DPP v Burrow [2004] NSWSC 433
Eldridge v Bates (1989) 51 SASR 532
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970) 127 CLR 106
Hall v The Queen (1999) 21 WAR 364
"HAS" v The State of Western Australia [2005] WASCA 29
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Leach v The Queen (2007) 81 ALJR 598
Lowndes v The Queen (1999) 195 CLR 665
Macdougall v Paterson (1851) 11 CB 755
Mason v Morrison [2004] WASCA 181
Milentis v Chitty, unreported; CCA SCt of WA; Library No 7826; 4 September 1989
Mitchell v The Queen (1996) 184 CLR 333
O'Keefe v Tankard [1989] VR 371
Police v Cadd (1997) 69 SASR 150
R v Allpass (1993) 72 A Crim R 561
R v Buckman (1988) 47 SASR 303
R v Carlstrom [1977] VR 366
R v Holcroft [1997] 2 Qd R 392
R v Liddington (1997) 18 WAR 394
R v Marston (1993) 60 SASR 320
R v Nystrom, unreported; VicCA 37/97; 30 June 1997
R v Webb [1971] VR 147
Ripper v Blakey [2002] WASCA 153
Slattery v Davis (1993) 65 A Crim R 116
Stanton v Dawson (1987) 31 A Crim R 104

JOHNSON J: The appellant appeals against the sentence of 16 months' imprisonment with parole, suspended for 2 years, imposed on the respondent for two offences of driving a motor vehicle whilst legally disentitled to hold a driver's licence, contrary to s 49(2)(a)(iii) of the Road Traffic Act

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 Dearnley v Damon

Details

AGLC: Dearnley v Damon [2007] WASC 124
Case: [2007] WASC 124
Decision Date: 12 JUNE 2007

CaseChat Overview and Summary

The case of Dearnley v Damon involves the appellant's appeal against his sentence following a breach of a suspended sentence. The appellant was originally sentenced to a suspended sentence and later breached the conditions of that sentence, leading to a new sentencing hearing. The legal issues before the court were whether the court was empowered to provide a copy of the pre-sentence report to both the prosecution and the defence and whether the denial of such access constituted a denial of procedural fairness. Additionally, the court considered the sentencing options available when a suspended sentence is breached and the application of transitional provisions in such cases.

The court examined the statutory framework governing the provision of pre-sentence reports and concluded that the court indeed had the power to provide a copy of the report to both parties. The court found that the denial of access to the report did not necessarily constitute a denial of procedural fairness, as the appellant had other means of challenging the sentencing decision. The court further considered the appropriate sentencing options available when a suspended sentence is breached, noting that the original sentencing principles should guide the court in determining an appropriate penalty. Finally, the court addressed the transitional provisions applicable to the case, ensuring that the sentencing decision was in line with the relevant legislative requirements.

Ultimately, the court found that while the denial of access to the pre-sentence report was not necessarily a denial of procedural fairness, it was in the interests of justice to grant the appellant access to the report. The court remitted the case back to the sentencing judge for reconsideration of the sentence, with appropriate access to the pre-sentence report provided to both parties. The final orders of the court included a direction for the sentencing judge to review the case with the benefit of the pre-sentence report and to ensure that the sentence imposed was fair and appropriate in the circumstances.

Orders