ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R D YOUNG
File No  :MI 6874 of 2011, MI 6876 of 2011

Catchwords:

Criminal law - Dangerous driving causing death while under influence of drugs to such an extent as to be incapable of having proper control of the vehicle - Dangerous driving causing bodily harm in same circumstances - Whether total effective sentence of 2 years 10 months manifestly excessive - Whether total sentence 'crushing'

Legislation:

Road Traffic Act 1974 (WA), s 59, s 59A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: Ms S Markham

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Easthope v Whitney [2011] WASC 190
Giglia v The State of Western Australia [2010] WASCA 9
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hunt v Callaghan [2011] WASC 10
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McDougall v The State of Western Australia [2009] WASCA 232
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Royer v The State of Western Australia [2009] WASC 139; (2009) 197 A Crim R 319
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Barron [2010] WASCA 27
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Gibbs [2009] WASCA 9
The State of Western Australia v Olive [2011] WASCA 25
Wilson v The State of Western Australia [2010] WASCA 82
Winwood v Brown [2011] WASC 123

HALL J: On 8 September 2011 David Russell Green, the appellant, was sentenced to a total effective term of 2 years and 10 months' imprisonment in the Magistrates Court at Midland. That sentence comprised 2 years and 6 months' imprisonment for an offence of dangerous driving causing death contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) and 4 months' imprisonment cumulative for a charge of dangerous driving causing bodily harm contrary to s 59A(1)(a) of the Act. In respect of both offences is was alleged that the appellant was under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle. This form of the offence attracts a maximum penalty of 20 years' imprisonment.
The appellant now seeks leave to appeal the sentences imposed. There are two grounds of appeal. The first ground is that…

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 Green v Haase

Details

AGLC: Green v Haase [2012] WASC 213
Case: [2012] WASC 213
Decision Date: 21 JUNE 2012

CaseChat Overview and Summary

The appeal involved the respondent, Haase, who was charged with dangerous driving causing death and bodily harm while under the influence of drugs to the extent that he was incapable of proper control of the vehicle. The case was heard in the Supreme Court of South Australia, which heard the appeal from the sentence imposed by the Magistrates Court. The primary legal issues before the court were whether the total effective sentence of 2 years and 10 months was manifestly excessive, and if it was "crushing" in the sense that it would undermine the utility of imprisonment as a means of punishment.

The court examined the principles of sentencing, particularly those relating to dangerous driving causing death or bodily harm. It noted that the sentence should reflect the gravity of the offence and the culpability of the offender. The court also considered the impact of the sentence on the offender and the community, as well as the need for deterrence and rehabilitation. The court found that while the sentence was severe, it was not so excessive as to be manifestly unjust. It also found that the sentence was not crushing, as it left room for the offender to be rehabilitated and potentially contribute positively to society upon release. The court emphasised the importance of proportionality in sentencing and the need to balance the various factors involved in determining an appropriate sentence.

Orders