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Heaton v Moulden

Heaton v Moulden

Case [2004] WASCA 29 4 March 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HEATON -v- MOULDEN & ORS [2004] WASCA 29

CORAM: ROBERTS-SMITH J

HEARD: 5 FEBRUARY 2004

DELIVERED : 4 MARCH 2004

FILE NO/S: SJA 1101 of 2003

BETWEEN: STEPHEN JOHN HEATON
Appellant
AND
RANDALL PHILLIP MOULDEN
First Respondent
CHRISTINA JANET JOHNSTON
Second Respondent
DAVID JAMES VINCENT
Third Respondent

Catchwords:

Sentencing - Road Traffic Act - Five offences of driving under suspension - Seven previous convictions for driving under suspension - Driving unlicensed vehicle - Driving vehicle with false number plates - Refusal to order eligibility for parole - Whether parole eligibility should have been ordered

Legislation:

Road Traffic Act 1974 (WA), s 49(1)

Sentencing Act 1995 (WA), s 89

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Ms L J Dias
Second Respondent      :     Ms L J Dias
Third Respondent          :     Ms L J Dias

Solicitors:

Appellant:     In person
First Respondent           :     State Crown Solicitor
Second Respondent      :     State Crown Solicitor
Third Respondent          :     State Crown Solicitor

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

Cardillo v Taylor (1999) 29 MVR 301
Cunningham v Walsh [2000] WASCA 201
McLean v The Queen [1999] WASCA 209
Nebro v Duxbury (2000) 31 MVR 499
Swain v The Queen (1989) 41 A Crim R 214
Thompson v The Queen (1992) 8 WAR 387
Veen v The Queen (No 2) (1988) 164 CLR 465
Wongawol v The Queen (1998) 101 A Crim R 350

Case(s) also cited:

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Chan v The Queen (1989) 38 A Crim R 337
Herbert v The Queen (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386

ROBERTS-SMITH J: The appellant appeals against the refusal of a Magistrate to order that he be eligible for parole following his conviction upon his pleas of guilty in the Court of Petty Sessions at Perth to a number of charges in respect of which the learned Magistrate, Mr W Tarr SM, sentenced him to imprisonment for 17 months.
Leave to appeal was granted by Miller J on 20 October 2003 on the grounds that:
"(a)The learned Magistrate erred in law in refusing to grant parole;
(b)That the failure to grant parole was unjust, harsh and oppressive having regard to:
(i)the fact that the applicant was in work;
(ii)the fact that the applicant had a dependent family, and
(iii)the applicant's history of offending and antecedents generally."
The appellant appeared before the learned Magistrate on 6 August 2003 and pleaded guilty to five counts of driving under suspension, contrary to s 49(1) and (2)(a)(iii) of the Road Traffic Act 1974 (WA) ("the RTA"), three counts of driving an unlicensed vehicle contrary to s 15(3) of the RTA, three counts of driving a vehicle with false number plates, contrary to s 97(f)(iii) RTA and one count 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 Heaton v Moulden

Details

AGLC: Heaton v Moulden [2004] WASCA 29
Case: [2004] WASCA 29
Decision Date: 4 MARCH 2004

CaseChat Overview and Summary

The matter of Heaton v Moulden was heard in the Supreme Court of New South Wales. The appellant, Heaton, was convicted of five separate offences of driving under a suspension of his driver's licence, driving an unlicensed vehicle, and driving a vehicle with false number plates. This appeal concerned the severity of the sentence imposed, specifically the refusal of the sentencing judge to order eligibility for parole. Heaton had a history of seven prior convictions for driving under suspension. The central legal issue before the court was whether the trial judge should have ordered eligibility for parole despite the appellant's repeated transgressions.

The court considered the principles of sentencing under the Road Traffic Act, focusing on the deterrence and denunciation aspects. The judge emphasised the appellant's persistent disregard for the law and the community's need for protection. The court noted the appellant's history of similar offences, which indicated a pattern of behaviour that warranted a stringent response. The appellant's arguments for parole eligibility were centred on his potential for rehabilitation and the impact of incarceration on his family. However, the court found that the cumulative effect of the appellant's actions and his repeated breaches of the law outweighed the arguments for parole eligibility. The court upheld the decision of the trial judge, ruling that ordering parole eligibility was not warranted given the circumstances.

In light of the above, the appeal was dismissed. The court reaffirmed the trial judge's sentencing decision, concluding that the sentence imposed was appropriate given the appellant's history and the nature of the offences. The court underscored the importance of maintaining public safety and the need for strong deterrent measures in cases involving repeated driving under suspension. The final orders of the court confirmed the sentence imposed by the trial judge, without altering the requirement for parole eligibility.

Orders