JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GOULD -v- WHALLEY [2007] WASC 315
CORAM: McKECHNIE J
HEARD: 26 NOVEMBER 2007
DELIVERED : 26 NOVEMBER 2007
FILE NO/S: SJA 1066 of 2007
BETWEEN: LEE GOULD
Appellant
AND
CLINT NATHAN WHALLEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :RO 5055 of 2007, RO 5056 of 2007, RO 5057 of 2007, RO 5058 of 2007
Catchwords:
Road traffic, driving under suspension - Unrepresented - Effect of plea of guilty - Whether taken into account
Legislation:
Nil
Result:
Appeal allowed
Appellant re-sentenced
Category: D
Representation:
Counsel:
Appellant: Mr H C Quail
Respondent: Mr A D Sullivan
Solicitors:
Appellant: Hylton Quail
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
McKECHNIE J: On 11 July 2007 the applicant was sentenced to a total term of 2 years' imprisonment, without eligibility for parole, for a series of driving offences. I directed that the application for leave to appeal and the appeal be heard together. Having heard the application, leave to appeal is granted. I will now refer to the applicant as the appellant.
The offences to which the appellant pleaded guilty and received a total term of 12 months' imprisonment were as follow:
| Complaint Number | Description and date of Offence | Term Imposed |
| PE 5801/06 | No MDL (Disq) - 11 Oct 05 | 12 months concurrent |
| RO 5055/07 | Reckless Driving - 24 June 07 | 6 months concurrent |
| RO 5056/07 | No MDL (Disq) - 24 June 07 | 12 months cumulative |
| RO 5057/07 | DUI Alcohol - 24 June 2007 | 9 months concurrent |
| RO 5058/07 | Obstruct Police Officer - 24 June 07 | 3 months concurrent |
I will come to the cumulative nature of RO 5056/07 shortly. He was also fined for one other offence.
The convictions triggered a suspended term of imprisonment of 12 months, which the magistrate activated, finding no reason not to do so. Therefore, the total sentence was 12 months' imprisonment. The activated suspended sentence of 2 years' imprisonment is not subject to an appeal. I therefore confine my consideration to the sentence of 12 months' imprisonment with the concurrent sentences imposed directly by the magistrate on 11 July 2007. The first sentence, however, has some relevance to the total effective period in custody.
It is not necessary to venture a description of the offences. It is sufficient to quote the magistrate where he said:
[O]n this occasion you repeat that behaviour and albeit that you might have only driven a short distance, you were well and truly intoxicated. You tried to evade police by accelerating from them, losing control due to that intoxication and the speed, and by doing that, you endangered the lives of innocent road users throughout that journey and there is only one appropriate disposition and that is one of imprisonment.
The record of the appellant was described by…
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- Case
- [2007] WASC 315
- Decision Date
CaseChat Overview and Summary
The central legal issue for the court to decide was whether the plea of guilty, entered by the appellant without legal representation, could be taken into account by the sentencing magistrate. The appellant submitted that the plea of guilty should not be considered because it was entered without proper legal advice, and this could potentially result in an unfair sentence. The court was required to assess the circumstances surrounding the entry of the plea and its impact on the sentencing process.
The court found that the plea of guilty was improperly taken into account by the magistrate, as the appellant was unrepresented at the time. The court held that the plea of guilty should not have been considered by the sentencing magistrate, as it was entered without proper legal advice. The court found that the appellant's unrepresented plea of guilty was not a valid mitigating factor and should not have influenced the sentence. Consequently, the appeal was allowed, and the appellant was re-sentenced.
Orders
Orders of the court
1. Appeal allowed;
2. Appellant re-sentenced.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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