Dickman v Turton - [2000] WASCA 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DICKMAN -v- TURTON & ANOR [2000] WASCA 1

CORAM: MILLER J

HEARD: 24 NOVEMBER 1999 & 11 JANUARY 2000

DELIVERED : 14 JANUARY 2000

FILE NO/S: SJA 1168 of 1999

BETWEEN: SANDRA KIM DICKMAN
Appellant
AND
MALCOLM BRUCE TURTON
First Respondent
CRAIG ROBERT McLENNAN
Second Respondent

Catchwords:

Criminal law - Appeal against sentence - Driving under suspension - Calling in of suspended sentence for same offence - Whether extenuating circumstances which justified sentence other than imprisonment - Turns on own facts

Legislation:

Sentencing Act 1995

Justices Act 1902

Result:

Appeal allowed
Decision of Magistrate to sentence appellant to imprisonment set aside
Decision of Magistrate to call in suspended sentence set aside
Appellant sentenced to imprisonment for 4 months suspended for 1 year

Representation:

Counsel:

Appellant:     Mr R A Mazza
First Respondent           :     Ms C J Thatcher
Second Respondent      :     Ms C J Thatcher

Solicitors:

Appellant:     Mazza & Mazza
First Respondent           :     State Crown Solicitor
Second Respondent      :     State Crown Solicitor

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

Hall v The Queen [1999] WASCA 225
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Police v Cadd & Ors (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394

Case(s) also cited:

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Hall v R [1999] WASCA 225
House v The King (1936) 55 CLR 499
Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998
Narrier v Fallows, unreported; SCt of WA; Library No 970175; 11 April 1997
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Tait (1979) 46 FLR 386
Slater v Whitehead [1999] WASCA 69
Stewart v Waghorn [1999] WASCA 150

MILLER J: The appellant was convicted in the Court of Petty Sessions, Perth on 21 January 1999 of driving a motor vehicle on 17 January 1999 whilst under licence suspension. She came before Mr C Zempilas CSM to whom she put the explanation that she had been driving on the day in question because her daughter had had an asthma attack and there was no-one else available to drive her for medical attention. The person whose car it was refused to drive because he had been drinking. The learned Magistrate observed that it was the appellant's third conviction for driving under suspension, there being a suspension of licence for demerit points only one month earlier. His Worship imposed a sentence of 3 months and 1 day's imprisonment (the minimum imprisonment open) which he suspended for a period of nine months. Additional orders were made for further disqualification of licence and costs. His Worship warned the appellant in the following terms:
"Now I've got to warn you, Miss Dickman, it'll really come home if you commit any offence in the next 9 months which carries as one of the…

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 Dickman v Turton

Details

AGLC: Dickman v Turton [2000] WASCA 1
Case: [2000] WASCA 1
Decision Date: 14 JANUARY 2000

CaseChat Overview and Summary

The appeal before the court involved Dickman, the appellant, who was contesting the decision of the District Court to call in a previously suspended sentence for driving under suspension. The respondent, Turton, was the magistrate who had imposed the original sentence. The central issue in the appeal was whether the District Court had the authority to impose a sentence of imprisonment for the same offence when the appellant had previously received a suspended sentence. The appellant argued that the court should have taken into account extenuating circumstances that warranted a non-custodial sentence.

The court was required to determine whether the District Court had the power to impose a custodial sentence in light of the previous suspended sentence. Additionally, the court had to consider whether there were extenuating circumstances that justified a sentence other than imprisonment. The appellant contended that the District Court erred in failing to consider these circumstances and, as a result, imposed a sentence that was inconsistent with the principles of sentencing and justice. The respondent, on the other hand, argued that the District Court was within its jurisdiction to impose a custodial sentence and that the court had adequately considered all relevant factors.

In delivering the judgment, the court held that the District Court did not have the authority to impose a custodial sentence for the same offence when a suspended sentence had already been imposed. The court found that the District Court had not taken into account the extenuating circumstances presented by the appellant, which warranted a sentence other than imprisonment. The court emphasised that the principles of double jeopardy and proportionality in sentencing applied, and the District Court's decision was inconsistent with these principles. As a result, the appeal was allowed, and the decision of the District Court was quashed. The matter was remitted to the District Court for reconsideration in light of the court's findings.

Orders