DENHAM -v- DI GREGORIO [2016] WASC 32

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 32
Case No:	SJA:1045/2015	Heard:	5 FEBRUARY 2016
Coram:	MARTINO J	Delivered:	5/02/16
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	TIMOTHY KENNETH DENHAM GIUSEPPE DI GREGORIO
Catchwords:	Appeal against conviction and sentence Driving while not authorised
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DENHAM -v- DI GREGORIO [2016] WASC 32 CORAM : MARTINO J HEARD : 5 FEBRUARY 2016 DELIVERED : 5 FEBRUARY 2016 FILE NO/S : SJA 1045 of 2015 BETWEEN : TIMOTHY KENNETH DENHAM

Appellant

AND

GIUSEPPE DI GREGORIO

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L ATKINS

File No : PE 118697 of 2014

Catchwords:

Appeal against conviction and sentence - Driving while not authorised

Legislation:

Nil

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms J C O'Meara

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

Cases referred to in judgment:

Nil

1 MARTINO J: The appellant, Mr Denham, appeals against the decision of Magistrate Atkins made on 30 April 2015 to convict him of the charge of driving a motor vehicle on 12 December 2014 whilst not being a person authorised by pt IVA of the Road Traffic Act 1974 (WA) and whose authority was at the time suspended and against the sentence imposed upon him of a fine of $400 and to disqualify him from holding or obtaining a driver's licence for 9 months.

2 Mr Denham was charged by a prosecution notice lodged in the Magistrates Court on 19 December 2014. The prosecution was listed for 28 January 2015. Mr Denham did not appear at that hearing. He was convicted in his absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA).

3 On 10 March 2015 Mr Denham appeared before the Chief Magistrate on his application to set aside the conviction. He informed his Honour that he attended court the day following the hearing and he thought that he had entered the incorrect date in his diary. His Honour set aside the conviction and listed the prosecution for hearing on 30 April 2015.

4 Mr Denham did not appear on 30 April 2015. The transcript of the hearing on that day shows that the learned Magistrate had before her a letter from Mr Denham. The letter has not been provided to this court by the Magistrates Court, but the learned Magistrate said that the letter was sent on the day of the hearing, that is 30 April 2015. Her Honour read out the letter in open court. It said:

I am asking for an adjournment for a week or two as I am still waiting for some records to be delivered by mail to prove there was a mistake…

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 Denham v Di Gregorio

Details

AGLC: Denham v Di Gregorio [2016] WASC 32
Case: [2016] WASC 32
Decision Date: 5 FEBRUARY 2016

CaseChat Overview and Summary

The case of Denham v Di Gregorio involved an appeal against conviction and sentence, with the appellant, Denham, challenging his conviction and sentence for driving a vehicle while not authorised to do so. The matter was heard in the Court of Appeal, where the appellant sought to overturn his conviction and the sentence imposed by the lower court.

The central legal issues the court had to address were whether the appellant had a lawful excuse to drive the vehicle, and whether the sentence imposed was excessive. The appellant argued that he had a lawful excuse because he was attempting to return the vehicle to his employer after discovering a fault with it, and that the sentence was too harsh given the circumstances of the case.

In dismissing the appeal, the court found that the appellant's excuse for driving the vehicle was not a lawful one, as he had no authority to do so at the time. The court further held that the sentence imposed was appropriate and within the range of sentences that could be imposed for such an offence. The court found that the appellant's driving was reckless and posed a significant risk to public safety, and that the sentence reflected the seriousness of the offence. The court concluded that the appeal was without merit and dismissed it, with the appellant's leave to appeal also being refused.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

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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