Howie v Clark

[2006] WASC 212

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	HOWIE -v- CLARK [2006] WASC 212

CORAM	: McKECHNIE J
HEARD	: 12 SEPTEMBER 2006
DELIVERED	: 12 SEPTEMBER 2006
FILE NO/S	:  SJA 1053 of 2006
BETWEEN	: NOEL ALAN HOWIE

Appellant

AND

SHAUN ANDREW CLARK

Respondent

ON APPEAL FROM:

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram	:	JUSTICES OF THE PEACE WRIGHT AND WALTON
File No	:	BM 1310 of 2006
Catchwords:

Sentencing - Conversion of fine into Work Development Order - Need to follow the procedure in Sentencing Act 1995 (WA)

Legislation:

Sentencing Act 1995 (WA), s 57A

[2006] WASC 212

Result:

Ground of appeal upheld but appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms K Y Loh
Respondent	:	No appearance

Solicitors:

Appellant	:	State Solicitor
Respondent	:	No appearance

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

Lopes v Carter [2006] WASC 197

Case(s) also cited:

Nil

[2006] WASC 212

McKECHNIE J

1. McKECHNIE J: On 6 May this year at Broome, Mr Clark was driving his car in the very early hours of the morning when he was stopped for a random breath test. Unfortunately for him his reading was very high. Consequently, on 11 May 2006, he pleaded guilty in the Broome Magistrates Court, constituted by two Justices of the Peace, to a charge of an offence under the Road Traffic Act 1974 (WA) s 63(1).

2              This was his first offence and counsel made a plea in mitigation on

his behalf. He was fined $800 and disqualified from holding or obtaining a driver's licence for 9 months. No complaint is made about this disposition.

1. Counsel said to the Court:

   "He has asked me to - - to ask the court whether or not he can seek a work and development order in relation to the fine, given that he's on CDP but that's a matter for the court."

4              The prosecutor took the Justices of the Peace to the procedure to be

followed under the Sentencing Act 1995 (WA) s 57A. Notwithstanding, and without attempting to comply with the section, the Justices proceeded to make an order converting the fine to a work and development order. The prosecutor again drew attention of the Court to s 57A. However, the Court never complied with the law.

1. The ground of appeal is:

   "The Justices of the Peace erred in law in making a Work Development Order for the respondent in respect of charge No BM 1310/06:

(a)	without first being satisfied by evidence on oath of the matters concerned in s 57A(5)(b) and (c) of the Sentencing Act 1995; and
(b)	when the respondent was the holder of a vehicle licence."

6              The respondent filed a notice indicating that he does not intend to

take part in the appeal and will accept any order made by the Court in the
appeal other than as to costs.

7              The appeal must succeed. Manifestly the Court did not follow the

procedure under the Sentencing Act s 57A when it was required to do so. As the Chief Justice recently held in Lopes v Carter [2006] WASC 197 at [14]:

[2006] WASC 212

McKECHNIE J

"The language of subsection (5) of s 57A is mandatory and emphatic in that it provides that the Court must not make a fine enforcement (WDO) order unless the requirements of the subsection are satisfied."

8              In the present case, at no time was the respondent ever asked to give

evidence on oath as required by the section. Moreover, at the time of
sentencing he was the holder of a vehicle licence.

9              Normally, I would simply allow the appeal and set aside the WDO.

However, the appellant has advised that the respondent has now wholly completed the purported WDO.

1. In the particular circumstances of the case, therefore I:

• uphold the ground of appeal which has been made out by the appellant;

• but dismiss the appeal on the ground that no substantial miscarriage of justice has occurred because, in fact, the appellant has completed the work under the invalid WDO.