DOWSON -v- YOULDEN [2001] WASCA 369

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 369
Case No:	SJA:1151/2001	Heard:	5 NOVEMBER 2001
Coram:	WHEELER J	Delivered:	23/11/01
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed in part
Category:	B
PDF Version

Parties:	PAUL DAVID DOWSON PAUL YOULDEN
Catchwords:	Justices Appeal Sentence Parole eligibility Administrative error Turns on own facts Justices Appeal Sentence Totality principal Turns on own facts Justices Appeal Sentence Offender not personally present
Legislation:	Sentencing Act 1995, s 14
Case References:	Heryadi v The Queen, unreported; CCA SCt of WA; Library No 980113; 12 March 1998 Jarvis v The Queen (1998) 20 WAR 201 Pearce v The Queen (1998) 194 CLR 310 Sheppard v Blakey [2001] WASCA 309 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Lowndes v The Queen (1999) 195 CLR 665 The Queen v Legg [1998] WASCA 90 Thompson v The Queen (1992) 8 WAR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DOWSON -v- YOULDEN [2001] WASCA 369 CORAM : WHEELER J HEARD : 5 NOVEMBER 2001 DELIVERED : 23 NOVEMBER 2001 FILE NO/S : SJA 1151 of 2001 BETWEEN : PAUL DAVID DOWSON

Appellant

AND

PAUL YOULDEN

Respondent

Catchwords:

Justices - Appeal - Sentence - Parole eligibility - Administrative error - Turns on own facts

Justices - Appeal - Sentence - Totality principal - Turns on own facts

Justices - Appeal - Sentence - Offender not personally present

Legislation:

Sentencing Act 1995, s 14

Result:

Appeal allowed in part

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr M M Flynn

Respondent : Mr S J Wright

Solicitors:

Appellant : Director of Legal Aid

Respondent : State Crown Solicitor

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

Heryadi v The Queen, unreported; CCA SCt of WA; Library No 980113; 12 March 1998
Jarvis v The Queen (1998) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 310
Sheppard v Blakey [2001] WASCA 309
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665
The Queen v Legg [1998] WASCA 90
Thompson v The Queen (1992) 8 WAR 387

(Page 3)

1 WHEELER J: This is an appeal from decisions given in the Court of Petty Sessions on 9 January 2001 and on 5 June 2001. On the former occasion a total effective sentence of 12 months' imprisonment, apparently without eligibility for parole, was imposed upon the appellant, while on the second occasion he received a total effective sentence of 15 months' imprisonment with eligibility for parole. The history of the matters is set out below.

Background

2 Between 13 December 1999 and 4 December 2000 the appellant committed 42 offences for which he was sentenced on three occasions. On 5 December 2000 he pleaded guilty in the District Court to one count of aggravated burglary committed on 16 October 2000…

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 Dowson v Youlden

Details

AGLC: Dowson v Youlden [2001] WASCA 369
Case: [2001] WASCA 369
Decision Date: 23 NOVEMBER 2001

CaseChat Overview and Summary

The appeal in Dowson v Youlden was brought by the applicant before the Court of Appeal, contesting the decision of the primary judge concerning the applicant's parole eligibility. The applicant, who was subject to a sentence involving imprisonment, sought to challenge the correctness of the primary judge's determination that he was not eligible for parole. The Court of Appeal was tasked with examining whether the primary judge's decision was legally sound and whether the administrative error, which was identified, warranted any alterations to the applicant's parole eligibility.

The central legal issues before the Court of Appeal revolved around the principles governing parole eligibility, specifically whether the administrative error identified by the primary judge had any bearing on the applicant's eligibility for parole. The Court had to determine whether the administrative error constituted a material irregularity that could potentially affect the applicant's eligibility, and if the application of the totality principle warranted a different outcome. Moreover, the Court was required to consider the procedural aspect of the offender not being personally present during the appeal hearing and its implications on the fairness of the proceedings.

The Court of Appeal found that while the administrative error was significant, it did not alter the overall outcome regarding the applicant's parole eligibility. The Court emphasised that the decision on parole eligibility turns on its own facts and must be assessed based on the individual circumstances of the offender. The Court noted that the totality principle must be applied with consideration of all relevant factors, including the nature of the offence and the offender's conduct during the sentence. Additionally, the Court acknowledged the procedural concern of the offender not being present but concluded that it did not prejudice the fairness of the appeal. Ultimately, the Court allowed the appeal in part, modifying the primary judge's decision on certain grounds while affirming the overall outcome.

Orders

Orders of the court

Appeal allowed in part

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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