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Dixon v McNevin

Dixon v McNevin

Case [2018] WASC 240 10 August 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DIXON -v- MCNEVIN [2018] WASC 240
CORAM:   MCGRATH J
HEARD:   31 JULY 2018
DELIVERED          :   10 AUGUST 2018
FILE NO/S:   SJA 1010 of 2018
BETWEEN:   JASON ANTHONY DIXON
Appellant
AND
ALLAN MCNEVIN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M E SHACKLETON
File Number             :   BU 6485/2017
BU 6486/2017
BU 6487/2017
BU 1971/2016
BU 1984/2016
BU 4774/2016

Catchwords:

Criminal law - Appeal against sentence - Breach suspended sentence - Whether individual sentence for reckless driving in circumstances of aggravation manifestly excessive - Whether aggregate sentence infringed first limb of totality principle

Legislation:

Criminal Appeals Act 20014 (WA), s 8, s 9, s 9(1), s 9(2), 14
Firearms Act 1973 (WA), s 19(1)(c)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c), s 60(1A)(a)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 80(1)(b), s 80(1)(c), s 87

Result:

Leave to appeal granted on ground four
Leave to appeal not granted on grounds one, two and three
Appeal allowed
Offender resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Lawton Gillon
Respondent	:	Director of Public Prosecutions (WA)

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

Boase v Roberts [2018] WASC 45
Brown v Western Australia [2009] WASCA 74
Counsel v Glynn [2017] WASC 7
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Johnson v Hayter [2001] WASCA 118
Lenton v The State of Western Australia [2017] WASCA 224
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MJS v The State of Western Australia [2011] WASCA 112
Munda v Western Australia [2013] HCA 38; (2013) CLR 600
Narkle v Hamilton [2008] WASCA 31
Reeves v Regen [2016] WASC 106
Richards v Damianopolous [2002] WASCA 159
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stone v The State of Western Australia [2010] WASCA 80
Trew v Western Australia [2004] WASCA 155
Wilhelm v The State of Western Australia [2013] WASCA 273

MCGRATH J:

Introduction

Mr Dixon was serving a 23 month term of imprisonment suspended for 18 months that was imposed for three offences (the first offences). As a consequence of committing further offences (the new offences), Mr Dixon was sentenced to serve 22 months of the suspended term of imprisonment. In addition, cumulative terms of imprisonment of totalling 14 months were imposed in respect of the new offences. Therefore, the total effective sentence imposed was 3 years' imprisonment.
Mr Dixon now seeks leave to appeal the sentence on the ground that the sentencing magistrate erred in concluding that it would not be unjust that Mr Dixon serve 22 months of the previously suspended term…

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 Dixon v McNevin

Details

AGLC: Dixon v McNevin [2018] WASC 240
Case: [2018] WASC 240
Decision Date: 10 AUGUST 2018

CaseChat Overview and Summary

The case of Dixon v McNevin was heard in the Court of Appeal, where the appellant, Dixon, sought to appeal against the sentence imposed on him by the lower court. Dixon had previously been convicted of reckless driving and was subject to a suspended sentence. When Dixon subsequently breached the conditions of the suspended sentence, he was sentenced to imprisonment. The appeal centred on whether the individual sentence imposed for the reckless driving offence, given the circumstances of aggravation, was manifestly excessive, and whether the aggregate sentence constituted a breach of the first limb of the totality principle.

The legal issues before the court involved the assessment of the severity of the sentence in relation to the offence of reckless driving, considering the aggravating circumstances, and whether the aggregate sentence, when combined with the suspended sentence, was inconsistent with the principles of sentencing. Specifically, the court needed to determine if the sentence was manifestly excessive and if the aggregate sentence contravened the first limb of the totality principle, which requires that the aggregate sentence should not be disproportionate to the seriousness of the offending.

The court held that the sentence for the reckless driving offence was not manifestly excessive, taking into account the aggravating circumstances. The court reasoned that the sentence reflected the gravity of the offence and the need for deterrence. However, the court found that the aggregate sentence, when considered alongside the suspended sentence, did infringe the first limb of the totality principle. The aggregate sentence was deemed to be disproportionate relative to the seriousness of the offending, resulting in a breach of the principle that the aggregate punishment should not be excessive in relation to the overall offending. The court, therefore, allowed the appeal on the ground that the aggregate sentence contravened the first limb of the totality principle. The case was remitted to the lower court for reconsideration of the sentence in light of the totality principle.

Orders