Gould v Whalley - [2007] WASC 315

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):

McDonald v White [2007] WASCA 213
Piccolo v The State of Western Australia [2007] WASC 149

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…

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.

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Details

Case: [2007] WASC 315
Decision Date: 26 November 2007

CaseChat Overview and Summary

In the case of Gould v Whalley, the appellant was convicted in the Local Court of driving while his licence was suspended. The appellant was unrepresented in the proceedings, and the matter came before the District Court on appeal against the sentence. The appellant contended that his plea of guilty was improperly taken into account by the sentencing magistrate. The appellant argued that the plea of guilty should not have been considered in the sentencing process, as it was entered unrepresented.

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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