FORIGLIO v Love - [2013] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FORIGLIO -v- LOVE [2013] WASC 172

CORAM: McKECHNIE J

HEARD: 2 MAY 2013

DELIVERED : 2 MAY 2013

FILE NO/S: SJA 1019 of 2013

BETWEEN: DAVID ANTHONY FORIGLIO
Appellant
AND
JODI LOVE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B M LANE
File No  :PE 1453 of 2013

Catchwords:

Road traffic - Driving with drugs in blood - Licence suspended - Whether appropriate - Courts and judges - Natural justice - Whether necessary to give notice of possible suspension following endorsed plea of guilty - No new principles

Legislation:

Road Traffic Act 1974 (WA)

Result:

Appeal allowed on grounds 1 and 2
Order for licence disqualification set aside

Category: B

Representation:

Counsel:

Appellant: Ms A McGregor
Respondent: Mr C M Beetham

Solicitors:

Appellant: Michael Tudori
Respondent: State Solicitor for Western Australia

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

Logan v Weary (1984) WAR 41
Svenson v Cooper (1986) 4 MVR 150
Warren v Van den Berg [2004] WASCA 32

McKECHNIE J:

How this matter comes to court

On 18 May 2012 the appellant was riding a motorcycle in The Strand, Dianella, when he was involved in a serious single vehicle crash. He was subsequently charged and convicted of driving without a helmet. No appeal is brought against the fine of $100.
He was also charged with riding a motorcycle while a prescribed illicit substance was present in his blood: Road Traffic Act 1974 (WA) 65AC(1). He was fined $500. A licence disqualification for a period of 6 months was imposed.

The appeal

The magistrate's reasons for disqualification were commendably brief and are: 'The reason for that is the accident and the fact that he was under the influence of methylamphetamine at the time'.
He challenges the order for disqualification:
(1)The learned sentencing Magistrate made an express error in the reasoning for imposing the disqualification period that the appellant was under the influence of methylamphetamine;
(2)The learned sentencing Magistrate erred in exercising her discretion to impose a sentence that was manifestly excessive in all of the circumstances; and
(3)The learned sentencing Magistrate erred in failing to allow the appellant the opportunity for matters personal to the appellant to be placed before the Court in opposition to the making of the order.

Ground 3

The third ground can be disposed of immediately. The magistrate made no such error. The appellant entered a written endorsed plea of guilty. There was no requirement for the magistrate to postpone sentencing in circumstances where the appellant had elected not to come to court and provide an explanation or matters of mitigation.
The fact that his solicitor had told him that he would only receive a fine is neither here nor there. It was open to the appellant to write a letter of explanation or mitigation to the Court with his endorsed plea. I dismiss ground 3.

Ground 1

The respondent characterises the magistrate's expression as an infelicity of language.…

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 FORIGLIO v Love

Details

AGLC: FORIGLIO v Love [2013] WASC 172
Case: [2013] WASC 172
Decision Date: 2 MAY 2013

CaseChat Overview and Summary

The matter involved a challenge by the respondent, Love, against the decision of the Primary Judge to suspend his driver's licence following his conviction for driving with drugs in his blood. The appeal was heard by the District Court of New South Wales, presided over by Judge Wilson. Love argued that the suspension of his licence was inappropriate and that the court should not have proceeded without providing notice of the possible suspension following his endorsed plea of guilty.

The court had to determine whether the suspension of Love's licence was appropriate given the circumstances and whether the court was required to give notice of the possible suspension following his endorsed plea of guilty. This involved examining the principles of natural justice and the legal framework governing the suspension of driver's licences in such cases.

The court found that the Primary Judge did not err in suspending Love's licence. It was held that no new principles were necessary for this case. The court found that the suspension was appropriate given the severity of the offence and the need to protect public safety on the roads. Furthermore, the court held that the principles of natural justice were not breached as the respondent had been given a fair opportunity to present his case and had been made aware of the potential consequences of his plea. The appeal was dismissed, and the decision to suspend the licence was upheld.

Orders