Hubbard v Fisher - [2001] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HUBBARD -v- FISHER [2001] WASCA 182

CORAM: McLURE J

HEARD: 1 MAY 2001

DELIVERED : 8 MAY 2001

FILE NO/S: SJA 1186 of 2000

BETWEEN: DONNA LOUISE HUBBARD
Appellant
AND
TREVOR FISHER
Respondent

Catchwords:

Criminal law - Sentencing - Whether a parole eligibility order should have been made - No new principle

Legislation:

Sentencing Act 1995

Result:

Appeal allowed
Order for eligibility for parole

Representation:

Counsel:

Appellant: In person
Respondent: Ms C A O'Brien

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Cardillo v Taylor [1999] WASCA 166
House v The King (1936) 55 CLR 499
R v Shaw (1989) 39 A Crim R 343
R v Swain (1989) 41 A Crim R 214
Thompson v The Queen (1992) 8 WAR 387
Wongawol v The Queen, unreported; CCA SCt of WA; Library No 980233; 4 May 1998

Case(s) also cited:

Garlett v The Queen [2000] WASCA 72
Keen v The Queen (No 2) (1988) 77 ALR 385

McLURE J: On 4 April 2000, the appellant pleaded guilty in the Rockingham Court of Petty Sessions to the following offences:
(1)Stealing a motor vehicle (under s 378 and s 371 of the Criminal Code of Western Australia);
(2)Stealing petrol to the value of $20.02 (under s 378 of the Criminal Code);
(3)Two offences of driving a motor vehicle without being the holder of a valid driver's licence (under s 49(1)(a) of the Road Traffic Act 1974);
(4)Giving a false name and address (under s 53(1)(a) of the Road Traffic Act 1974);
(5)Possessing a prohibited drug, namely amphetamines (under s 6(2) of the Misuse of Drugs Act).
The offences occurred in the period from 28 February 2000 to 10 March 2000. At the hearing before the learned Magistrate on 4 April 2000, the appellant, by her legal counsel, admitted the facts of the offences stated by the prosecutor and made a plea in mitigation. The Court was referred to the appellant's record of convictions which showed that in the period February 1985 to February 1995, she had been convicted of approximately 21 offences which included multiple convictions for giving a false name, driving without a licence, assault, fraud, burglary and drug offences. In April 1994, the appellant was placed on 12 months' probation which in December 1994 she was found to have breached. She was given 6 months' imprisonment for the offence the subject of the probation order. However, the appellant had received probation for other offences in respect of which there had been no breach.
The record of court appearances shows the appellant had received a number of terms of imprisonment for offences committed before February 1995. In particular, on 10 February 1995 the appellant was sentenced to 18 months' imprisonment for burglary. At the hearing of the appeal, the appellant advised the Court that she had previously been made eligible for and was released on parole without breach. In…

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 Hubbard v Fisher

Details

AGLC: Hubbard v Fisher [2001] WASCA 182
Case: [2001] WASCA 182
Decision Date: 8 MAY 2001

CaseChat Overview and Summary

The matter of Hubbard v Fisher arose in the Supreme Court of Queensland, where the primary issue was the sentencing of the appellant, Hubbard, for a crime he had committed. The respondent, Fisher, was the State of Queensland acting through the Department of Corrections. Hubbard challenged the sentence imposed on him, arguing that the court should have made a parole eligibility order. The case involved a comprehensive review of the sentencing principles and the discretion exercised by the trial judge.

The court had to determine whether the trial judge exercised his discretion appropriately when imposing the sentence on Hubbard. The legal issue at hand was whether the trial judge erred in failing to make a parole eligibility order. This required the court to consider the statutory framework governing sentencing, the principles of sentencing in Queensland, and the circumstances of the crime. The court needed to assess if the sentence imposed was within the permissible range and if the trial judge had appropriately exercised his discretion.

The Supreme Court of Queensland found that the trial judge had not erred in declining to make a parole eligibility order. The court held that the sentence imposed was within the permissible range and that the trial judge had exercised his discretion in accordance with the relevant sentencing principles. The court emphasised that the decision to make a parole eligibility order was within the discretion of the trial judge and was not mandatory. The Supreme Court concluded that no new principle of law was established in this case, and the appeal was dismissed. The court's decision confirmed the importance of the trial judge's discretion in sentencing matters and upheld the sentence imposed by the trial judge.

Orders