Haworth v Bennell - [2010] WASC 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HAWORTH -v- BENNELL [2010] WASC 191

CORAM: JENKINS J

HEARD: 21 JULY 2010

DELIVERED : 21 JULY 2010

PUBLISHED : 30 JULY 2010

FILE NO/S: SJA 1138 of 2009

BETWEEN: JOANNE LUCILLE HAWORTH
Appellant
AND
MICHAEL BENNELL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 85204 of 2008, BU 94857 of 2009, BU 94858 of 2009

Catchwords:

Criminal law - Prosecution appeal against sentence - Driving under suspension and driving under the influence - Sentence of community based order - Sentence inadequate

Criminal law - Prosecution appeal - Order made under the Sentencing Act 1995 (WA) s 80 - Conditional release order - Order beyond power

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Road Traffic Act 1974 (WA), s 5(1)(a), s 49(1), s 49(1)(a), s 49(5)(1)(a), s 63(1), s 63(2)(c)
Sentencing Act 1995 (WA), s 80, s 80(1)(d)

Result:

Appeal allowed

Category: C

Representation:

Counsel:

Appellant: Mr E M Heenan
Respondent: Ms W C Hughes

Solicitors:

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

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

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Griekspoor v Scott (2000) 23 WAR 530
Hall v The Queen (1999) 21 WAR 364
Lowndes v The Queen (1999) 195 CLR 665
Moody v French [2008] WASCA 67
R v Morgan (1993) 70 A Crim R 368
Sheiner v Roberts [2009] WASC 281
The State of Western Australia v Collier [2007] WASCA 250

JENKINS J: This is a prosecution appeal from the orders made by a magistrate sitting in the Magistrates Court at Bunbury on 6 November 2009. The appeal is against the magistrate's decisions on prosecution notices Bunbury 08/5204, being one count of driving under suspension, Bunbury 09/4857, being one count of driving under the influence of alcohol, and Bunbury 09/4858, being one count of driving whilst under suspension.
In respect of charges 09/4857 and 09/4858 the respondent pleaded guilty before the magistrate and he was sentenced to a community based order for 12 months with a supervision requirement, a programme requirement for grief and alcohol counselling, and a community service requirement for 60 hours' community service work.
The respondent's conviction on those charges breached a suspended imprisonment order which had been imposed on 30 January 2009 for charge 08/5204. In respect of the breach the magistrate released the respondent on a conditional release order for a period of 12 months.

Grounds of appeal

The grounds of appeal against the orders are:
(1)The learned Magistrate erred in fact and in law with regard to charge number BU08/5204:
(a)in finding that circumstances had arisen or become known since the imposition of the suspended term of imprisonment that made it unjust to require the respondent to serve the suspended term of imprisonment, and
(b)in failing to require the respondent to serve the suspended term 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 Haworth v Bennell

Details

AGLC: Haworth v Bennell [2010] WASC 191
Case: [2010] WASC 191
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

In the matter of Haworth v Bennell, the appellant, the Director of Public Prosecutions, sought to appeal the sentence imposed by the Magistrates Court of Western Australia on the respondent, Bennell, who was found guilty of driving under suspension and driving under the influence. The Director of Public Prosecutions argued that the sentence of a community based order was inadequate, and as such, the Magistrates Court had exercised its discretion in an unreasonable manner. The appeal was brought under section 80 of the Sentencing Act 1995 (WA) and contested the imposition of a conditional release order, claiming it was beyond the court's power.

The legal issues that arose from this appeal involved the interpretation and application of the Sentencing Act 1995 (WA). The court was required to determine whether the Magistrates Court exercised its discretion in an unreasonable manner by imposing a sentence that was inadequate. Additionally, the court had to examine whether the imposition of a conditional release order was within the Magistrates Court's power under the Act. The court needed to consider the seriousness of the offences, the respondent's criminal history, and the principles of sentencing to ascertain whether the sentence was appropriate.

The Court of Appeal found that the Magistrates Court had indeed exercised its discretion in an unreasonable manner by imposing a sentence that was inadequate. The court considered the seriousness of the offences, the respondent's criminal history, and the principles of sentencing. The Court of Appeal concluded that the Magistrates Court did not give sufficient weight to the aggravating factors and that the sentence imposed did not adequately reflect the seriousness of the respondent's offending. Furthermore, the Court of Appeal determined that the imposition of a conditional release order was beyond the Magistrates Court's power under the Sentencing Act 1995 (WA). The court found that the order was not authorised by the Act and thus was invalid.

As a result of the Court of Appeal's findings, the sentence imposed by the Magistrates Court was quashed, and the matter was remitted to the Magistrates Court for re-sentencing. The Court of Appeal did not impose a specific sentence but rather directed that the Magistrates Court consider the appropriate sentence in light of the court's findings. The Court of Appeal emphasised the importance of giving adequate weight to the aggravating factors and ensuring that the sentence imposed reflected the seriousness of the respondent's offending.

Orders