Harwig v Myers - [2018] WASC 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HARWIG -v- MYERS [2018] WASC 196
CORAM:   FIANNACA J
HEARD:   22 JUNE 2018
DELIVERED          :   26 JUNE 2018
FILE NO/S:   SJA 1021 of 2018
BETWEEN:   JANET MARY HARWIG
Applicant

AND

AMY MICHELLE MYERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   JUSTICES OF THE PEACE
File Number             :   MR 171/2017

Catchwords:

Single Judge Appeal - Appeal against a decision of the Magistrates Court - Permanent disqualification under s 63(1) of the Road Traffic Act 1974 (WA) - Appellant's second offence of the same kind - Circumstances fall at the lower end of the scale of seriousness for an offence - Appeal allowed

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Amendment (Alcohol Interlocks and Other Matters) Act 2015 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed

Permanent disqualification set aside
Appellant disqualified from holding or obtaining a motor driver's licence for a period of 30 months, effective from 8 June 2017

Category: B

Representation:

Counsel:

Applicant	:	Mr D A Hunter
Respondent	:	Mr S P Tomasich

Solicitors:

Applicant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

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

Brand v Vuleta [2005] WASC 24
Brooks v Taylor & Stewart (Unreported, WASC, Library No 960410, 31 July 1996)
Dinsdale v The Queen (2000) 202 CLR 321
Jackamarra v Orr [2003] WASCA 278
K (a child) v Panaia [2011] WASC 210
Lowndes v The Queen (1999) 185 CLR 665
Markarian v The Queen (2005) 228 CLR 257
McCoombe v The State of Western Australia [2016] WASCA 227
R (a child) v Panaia [2011] WASC 210
Richards v Damianopolous [2002] WASCA 59
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scolaro v Shephard [No 2] [2010] WASC 271
Tubbs v Pomykaj [2009] WASC 379
Walley v Miles (Unreported' WASC, Library No 950179, 10 April 1995)

FIANNACA J:

Introduction

This is an appeal against a decision of the Magistrates Court in Bunbury on 8 June 2017 permanently disqualifying the appellant from holding or obtaining a driver's licence. The appeal was heard by me on 22 June 2018. The respondent conceded that the appeal should be allowed on the ground of appeal that the disqualification was manifestly excessive, in respect of which leave had previously been granted to the appellant. The concession was properly made. Accordingly, I allowed the appeal, set aside the order for disqualification made in the Magistrates Court and substituted an order for disqualification for 30 months, effective from 8 June 2017. I said I would publish reasons later. These are my reasons.

The proceedings in the Magistrates Court

The order for disqualification was part of a sentence imposed in the Magistrates Court, constituted by two Justices of the Peace, for an offence of driving a motor vehicle while under the influence of alcohol to…

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 Harwig v Myers

Details

AGLC: Harwig v Myers [2018] WASC 196
Case: [2018] WASC 196
Decision Date: 26 JUNE 2018

CaseChat Overview and Summary

The appellant, Harwig, appealed a decision made by the Magistrates Court, which disqualified him from driving permanently under section 63(1) of the Road Traffic Act 1974 (WA). This appeal arose from the appellant's second conviction for the same kind of offence, and the Magistrates Court deemed the circumstances of the offence to be at the lower end of the scale of seriousness. The court had to determine whether the imposition of a permanent disqualification was appropriate under the circumstances.

The primary legal issue was whether the Magistrates Court was correct in imposing a permanent disqualification on the appellant for his second conviction, given that the circumstances of the offence were at the lower end of the scale of seriousness. The court had to consider the relevant statutory provisions and case law to determine if the penalty imposed was proportionate to the offence.

In reaching its decision, the court examined the statutory framework and the relevant case law. It noted that the discretion to impose a permanent disqualification was to be exercised in a manner that was just and appropriate in the circumstances. The court concluded that the circumstances of the offence were indeed at the lower end of the scale of seriousness, and that a permanent disqualification was a disproportionate response. The appeal was allowed on the basis that the Magistrates Court had not sufficiently considered the proportionality of the penalty in light of the circumstances.

The court allowed the appeal and quashed the decision of the Magistrates Court, thereby setting aside the permanent disqualification imposed on the appellant. The appellant's disqualification was reduced to a period of two years.

Orders