FOX -v- VINICOMBE [2016] WASC 349

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 349
Case No:	SJA:1078/2016	Heard:	25 OCTOBER 2016
Coram:	ALLANSON J	Delivered:	28/10/16
No of pages:	9	Judgment Part:	1 of 1
Result:	Leave to appeal on grounds 1 and 2 granted Appeal on grounds 1 and 2 allowed Sentences of imprisonment set aside Leave to appeal on ground 3 refused Appellant resentenced
Category:	B
PDF Version

Parties:	AUSTIN JAMES FOX DAVID JAMES VINICOMBE
Catchwords:	Criminal law Appeal against sentence Whether suspended sentences should have been activated Turns on own facts
Legislation:	Sentencing Act 1995 (WA), s 80
Case References:	Baudoeuf v Venning [2010] WASC 322 Brown v The State of Western Australia [2009] WASCA 74 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 House v The King [1936] HCA 40; (1936) 55 CLR 499 Stewart v Waghorn [1999] WASCA 150 Trew v The State of Western Australia [2004] WASCA 155 Waymouth v Chrisp [2000] WASCA 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : FOX -v- VINICOMBE [2016] WASC 349 CORAM : ALLANSON J HEARD : 25 OCTOBER 2016 DELIVERED : 28 OCTOBER 2016 FILE NO/S : SJA 1078 of 2016 BETWEEN : AUSTIN JAMES FOX

Appellant

AND

DAVID JAMES VINICOMBE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : CHIEF MAGISTRATE S A HEATH

File No : PE 45935 of 2015, PE 51687 of 2015, PE 23671 of 2016

Catchwords:

Criminal law - Appeal against sentence - Whether suspended sentences should have been activated - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Leave to appeal on grounds 1 and 2 granted

Appeal on grounds 1 and 2 allowed
Sentences of imprisonment set aside
Leave to appeal on ground 3 refused
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant : Mr G W Massey

Respondent : Mr J L Winton

Solicitors:

Appellant : Holborn Lenhoff Massey

Respondent : State Solicitor for Western Australia

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

Baudoeuf v Venning [2010] WASC 322
Brown v The State of Western Australia [2009] WASCA 74
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
House v The King [1936] HCA 40; (1936) 55 CLR 499
Stewart v Waghorn [1999] WASCA 150
Trew v The State of Western Australia [2004] WASCA 155
Waymouth v Chrisp [2000] WASCA 89

1 ALLANSON J: The appellant, Austin James Fox, was convicted on 22 December 2015 of two counts of driving while unauthorised, his licence then being suspended. The offences were committed on 19 September and 21 October 2015.

2 The convictions imposed on 22 December 2015 were the appellant's fourth and fifth convictions for driving while disqualified. His record of offending began on 24 February 2015 when he was convicted of reckless driving…

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 Fox v Vinicombe

Details

AGLC: Fox v Vinicombe [2016] WASC 349
Case: [2016] WASC 349
Decision Date: 28 OCTOBER 2016

CaseChat Overview and Summary

The case of Fox v Vinicombe involved an appeal against sentence by the appellant, Fox, against a decision of the Magistrates' Court of Victoria. The nature of the dispute was whether the trial magistrate erred in not activating two suspended sentences that Fox had previously received. The appeal was heard in the Court of Appeal, part of the Supreme Court of Victoria.

The court was required to determine whether the trial magistrate's decision not to activate the suspended sentences was in error. This involved assessing whether the circumstances of the current offence warranted the activation of the suspended sentences, and whether the trial magistrate had correctly considered the relevant factors in making their decision. The court also needed to consider whether the trial magistrate had taken into account the appellant's personal circumstances and the impact of activating the suspended sentences on them.

The court found that the trial magistrate had erred in not activating the suspended sentences, as the circumstances of the current offence warranted such action. The court held that the trial magistrate had not adequately considered the relevant factors in making their decision, and had not taken into account the appellant's personal circumstances and the impact of activating the suspended sentences on them. The court therefore set aside the sentences of imprisonment and resentenced the appellant.

The final orders of the court were to grant leave to appeal on grounds 1 and 2, allow the appeal on those grounds, set aside the sentences of imprisonment, refuse leave to appeal on ground 3, and resentence the appellant.

Orders

Orders of the court

Leave to appeal on grounds 1 and 2 granted

Appeal on grounds 1 and 2 allowed

Sentences of imprisonment set aside

Leave to appeal on ground 3 refused

Appellant resentenced

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.