ON APPEAL FROM:
For File No              :  SJA 1090 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :MH 5154 of 2009
For File No              :  SJA 1089 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :MH 5154 of 2009, MH 3047 of 2010

Catchwords:

Application for leave to appeal - Appeals against sentence - Convictions for driving without authority - Third and fourth convictions - Initial sentence of imprisonment but suspended - Sentencing for breach of SIO and sentence of immediate imprisonment for later conviction - Alleged errors in sentencing - Failure to advise unrepresented respondents of risk of imprisonment and opportunity

Legislation:

Criminal Appeals Act 2004 (WA), s 6(f), s 7, s 27(2)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Sentencing Act 1995 (WA), s 6(4), s 34(1)(b), s 39, s 65, s 66, s 67, s 80, s 86

Result:

Leave to appeal granted
Appeals allowed
Appellant resentenced

Category: B

Representation:

SJA 1090 of 2010

Consolidated by Orders dated 2 September 2010

Counsel:

Appellant: Mr A J Robson
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

SJA 1089 of 2010

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Ms K A T Pedersen
Second Respondent      :     Ms K A T Pedersen

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

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

Abdullah v Mills [2008] WASC 128
Anderson v Heath [2005] WASC 253
Anderson v Little [2009] WASC 143
Anderson v Stilwell [2006] WASC 257
Arcari v Christie [2007] WASC 298
Austin v Grapes [2004] WASCA 102
Bacich v Illich [2000] WASCA 133
Bell v Wesley [2007] WASC 264
Brooks v Blackley [2009] WASC 274
Calway v Wiebe (Unreported, WASCA, Library No 990001, 13 January 1999)
Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11
Challis v Davison [2008] WASC 198
Chinnery v Hansen [2001] WASCA 349
Cooling v Steel (1971) 2 SASR 249
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donnachy v Riegert [2004] WASCA 48
Dragic v Burrows [2000] WASCA 385
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fennell v Somerville [2009] WASC 214
Findlay v The State of…

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 Gable v Nardini

Details

AGLC: Gable v Nardini [2010] WASC 321
Case: [2010] WASC 321
Decision Date: 17 NOVEMBER 2010

CaseChat Overview and Summary

In the case of Gable v Nardini, the respondent, Nardini, applied for leave to appeal against his conviction for driving without authority, which was his third and fourth convictions for this offence. The matter was heard in the Supreme Court of Victoria. The respondent sought to appeal on the basis that the trial judge erred in imposing a sentence of immediate imprisonment for his latest conviction, rather than suspending the sentence, as was done in his previous convictions. The appeal centred on whether the trial judge erred in failing to adequately inform the respondent, who was unrepresented at the time, of the risk of imprisonment and the opportunity to seek legal advice.

The legal issues before the court included whether the trial judge's failure to advise the respondent of the risk of imprisonment and opportunity to obtain legal advice constituted a significant error in the sentencing process. Additionally, the court considered whether this alleged error was substantial enough to warrant the grant of leave to appeal. The court also had to determine if the sentence imposed was manifestly excessive or unjust.

The court found that the trial judge did not adequately inform the respondent of the risk of imprisonment and the opportunity to obtain legal advice, which was a significant error in the sentencing process. However, the court concluded that this error was not substantial enough to warrant the grant of leave to appeal. The court further found that the sentence imposed was not manifestly excessive or unjust, and therefore, the application for leave to appeal was dismissed. The court emphasised the importance of ensuring that unrepresented respondents are adequately informed of the risks and opportunities in the sentencing process, but in this instance, the error did not warrant an appeal.

Orders