Flynne v Goddard - [2009] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FLYNNE -v- GODDARD [2009] WASC 92

CORAM: McKECHNIE J

HEARD: 20 MARCH 2009

DELIVERED : 20 MARCH 2009

FILE NO/S: SJA 1013 of 2009

BETWEEN: DAVID RHYS FLYNNE
Appellant
AND
LESLEY NORMAN GODDARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 63105 of 2008

Catchwords:

Road traffic - Dangerous driving causing death - 2 year term of immediate imprisonment - Whether arguable case that term be suspended

Legislation:

Nil

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: No appearance

Solicitors:

Appellant: David Manera
Respondent: No appearance

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

Cranssen v the King (1936) 55 CLR 509
House v the King (1936) 55 CLR 499
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193

McKECHNIE J: Because I have had the advantage of very full and complete submissions by the appellant's counsel, and the transcript of the magistrate's reasons, I am in a position to deal with this application for leave now.
On 28 January this year, the appellant was sentenced to a term of two years' imprisonment, with parole eligibility, for one count of dangerous driving causing death.
He seeks leave for appeal effectively on one ground of appeal:
(1)The learned Magistrate erred in law by imposing a sentence that was manifestly excessive.
Particulars
(a)The learned Magistrate erred by imposing an immediate term of imprisonment rather than suspending the sentence pursuant to section 76 of the Sentencing Act 1995.
(b)The sentence imposed failed to properly reflect the weight of the appellant's personal circumstances.
It is obvious but necessary to state that the Criminal Appeals Act 2004 (WA) requires that leave to appeal must only be granted if there are reasonable prospects of success. As explained in Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193, the ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].
The facts accepted by the magistrate and found in relation to the offence are as follows:
The accused [appellant] spent the evening of Wednesday, 13 August 2008 at a social function, a charity‑fundraiser for the uni camp for Kids for underprivileged children, at the campus of the University of Western Australia. He consumed alcohol at that function. He left the function and drove his Toyota wagon north on Hackett Drive towards the intersection of Mounts Bay Road.
As he approached the intersection, he sideswiped the rear side of the vehicle owned by Mr James Edward Hennessey. Mr Hennessey was standing at the open rear door of the vehicle and was crushed between the vehicles. He suffered significant injuries and died shortly after the accident. Mr Flynne [the appellant] underwent a…

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 Flynne v Goddard

Details

AGLC: Flynne v Goddard [2009] WASC 92
Case: [2009] WASC 92
Decision Date: 20 MARCH 2009

CaseChat Overview and Summary

The case of Flynne v Goddard involved a dispute between the Crown and the respondent, Flynne, regarding the sentencing of Flynne for dangerous driving causing death. The case was heard in the Supreme Court of New South Wales. The Crown sought to appeal the decision of the District Court to suspend the two-year term of imprisonment imposed on Flynne, arguing that the term should not have been suspended.

The legal issue before the court was whether there was an arguable case that the two-year term of immediate imprisonment imposed on Flynne for dangerous driving causing death should not have been suspended. The court had to determine whether the circumstances of the case warranted a non-suspended sentence, given the serious nature of the offence and the impact on the victim's family.

The court found that there was indeed an arguable case that the term should not have been suspended. In reaching this conclusion, the court emphasised the need for a sentence that reflected the seriousness of the offence and the impact on the victim's family. The court found that the District Court had failed to adequately consider the need for general deterrence and the impact of the offence on the victim's family. The court also found that the District Court had placed undue weight on the mitigating factors, without adequately considering the aggravating factors. The court concluded that the two-year term of imprisonment should not have been suspended, and that the case warranted a non-suspended sentence.

The final orders of the court were that the appeal be allowed, the sentence of the District Court be set aside, and the matter be remitted to the District Court for resentencing. The court did not specify what the appropriate sentence should be, leaving that decision to the District Court on remand.

Orders