FM v WA Police - [2025] WASC 241

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FM -v- WA POLICE [2025] WASC 241
CORAM:   LEMONIS J
HEARD:   28 MAY 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   SJA 1056 of 2024
BETWEEN:   FM
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1056 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L DIAS
File Number            :   PE 61628 OF 2023 & PE 12234 OF 2024

Catchwords:

Appellant convicted on her plea of guilty in the Magistrates Court of one offence of driving a motor vehicle on a road while disqualified from holding or obtaining an Australian driver's licence, being an offence under s 49(1) of the Road Traffic Act 1974 - The offence was committed during the suspension period of a suspended term of imprisonment imposed for the same type of offence - The suspended term of imprisonment was 6 months and 1 day - The learned magistrate ordered that the appellant serve the entirety of the suspended term - The learned magistrate imposed a term of immediate imprisonment of 6 months and 1 day for the further offence, to be served concurrently - The appellant initially appealed on both conviction and sentence grounds - Appellant subsequently abandoned the conviction ground and proceeded only with the sentence appeal - Principal basis for the sentence appeal is that the impact on the appellant's children of her being imprisoned was so exceptional that it was not open to the learned magistrate to order that the appellant serve the terms of imprisonment - Appellant is the sole carer for the children - Appellant the subject of domestic violence and children exposed to that domestic violence - Consideration of impact on children of the sole carer being sent to prison in such circumstances

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted in respect of Ground 2

Leave to appeal granted in respect of Ground 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr M Olds

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

HJT v The State of Western Australia [2020] WASCA 120
Lemmon v Walker-McLean [2019] WASC 475
Miorada v The State of Western Australia [2022] WASCA 143
Neves v Rogers [2013] WASC 440
Ryan v The State of Western Australia [No 2] [2018] WASCA 230
S v The Queen [2003] WASCA 309
Taua v Director of Public Prosecutions for Western Australia [2023] WASC 476

LEMONIS J:

This appeal is from a decision of the learned magistrate made 1 August 2024 to impose a total effective sentence of imprisonment on the appellant of six months and one day, to be served.
The total effective sentence was comprised of two separate sentences. The first was an order that the appellant serve the full term of a previously suspended term of imprisonment of six months and one day. The second was 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.

Keep reading for free

Create a free CaseChat account to read FM v WA Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 241
Decision Date: 20 JUNE 2025

CaseChat Overview and Summary

In FM v WA Police, the appellant was convicted in the Magistrates Court for driving while disqualified, an offence under s 49(1) of the Road Traffic Act 1974. The offence occurred during the suspension period of a previously imposed term of imprisonment for the same type of offence. The magistrate ordered the appellant to serve the entirety of the suspended term of imprisonment, which was six months and one day, and imposed an additional term of six months and one day for the further offence, to be served concurrently. The appellant appealed the sentence, arguing that the impact on her children, who she is the sole carer for and who had been exposed to domestic violence, was so exceptional that it was not open to the magistrate to order imprisonment.

The primary legal issue before the court was whether the impact on the children of the appellant's imprisonment was so exceptional as to make the sentence inappropriate. The court had to consider the principles of sentencing in relation to family circumstances and the impact on dependent children. The court needed to determine whether the exceptional circumstances of the children's situation warranted a departure from the usual sentencing approach. The court also considered the relevant statutory provisions and case law on the impact of imprisonment on children and the role of the court in mitigating adverse effects on children.

The court found that the impact on the children of the appellant's imprisonment was indeed exceptional, given the appellant's role as the sole carer and the exposure of the children to domestic violence. However, the court held that this did not necessarily mean that imprisonment was inappropriate. The court recognised the need to balance the appellant's culpability and the need for general deterrence with the impact on the children. The court concluded that while the exceptional circumstances of the children's situation were a relevant consideration, they did not outweigh the appellant's culpability and the need for punishment. Consequently, the court dismissed the appeal against the sentence.

No further orders were made by the court.

Orders