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
Dinsdale v The Queen (2000) 202 CLR 321
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
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- AGLC
- Dearnley v Damon [2007] WASC 124
- Case
- [2007] WASC 124
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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