Humble v State Solicitor for Western Australia - [2009] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HUMBLE -v- STATE SOLICITOR FOR WESTERN AUSTRALIA [2009] WASC 99

CORAM: McKECHNIE J

HEARD: 6 APRIL 2009

DELIVERED : 6 APRIL 2009

PUBLISHED : 22 APRIL 2009

FILE NO/S: SJA 1009 of 2009

BETWEEN: GREGORY DOUGLAS HUMBLE
Appellant
AND
STATE SOLICITOR FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 20687 of 2008, PE 20688 of 2008, PE 20690 of 2008

Catchwords:

Criminal law - Sentences - Driving under suspension - Whether 12 months' imprisonment excessive - Time in custody not taken into account

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: Mr D F Van Zalm

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Nil

McKECHNIE J: In the Magistrates Court at Perth on 9 February 2009 the appellant pleaded guilty to three charges and was sentenced to a total term of imprisonment of 12 months. He filed a notice of leave to appeal and an application for bail.
At the hearing on 6 April 2009, which started out as a bail hearing, without opposition by counsel for the respondent (whose assistance in unravelling the matter I acknowledged), I granted leave to appeal, allowed the appeal, reduced the head sentence to one of 6 months and 1 week. These are my reasons for doing so.

The conviction

The resolution of this appeal was considerably complicated by reason of the fact that although the appellant appealed promptly, no transcript of the proceedings before the magistrate could be obtained.
The appellant was sentenced as follows:
•(PE 20688/08) No MDL, driving while suspended (Road Traffic Act s 49(1) and (2)(a)(iii) - 12 months' imprisonment - concurrent;
•(PE 20687/08) steal motor vehicle (Criminal Code s 378) - 6 months' imprisonment - concurrent;
•(PE 20690/08) criminal damage (Criminal Code s 444(b)) - 3 months' imprisonment - concurrent.
All sentences were made concurrent to take effect from the day of sentence.
The appellant's recollection, which may well be accurate, is that he received the 12 month sentence for stealing the motor vehicle and a 6 month sentence for driving under suspension. However, the warrant of commitment signed by the magistrate details the sentences as I have outlined them.
The facts on the statement of material facts were as follows:
Summary of Offence (Steal MV PE 20687/08)
Around 12.30pm on Wednesday the 12th of March 2008 the accused attended Derek Flatman and Associates car yard at 391 Guildford Road Bayswater. The accused approached the sales assistant and enquired into purchasing a vehicle. The accused showed interest in a 1994 gold Mercedes 220E sedan and informed the sales assistant he wished to purchase it. An agreement was made for the accused to take the vehicle and have it checked by his mechanic in Wright Street, Bayswater. The assistant agreed to let him take the car on…

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.

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Details

Case: [2009] WASC 99
Decision Date: 6 APRIL 2009

CaseChat Overview and Summary

In the case of Humble v State Solicitor for Western Australia, the applicant sought judicial review of his sentence imposed for driving under a suspended license. The High Court of Australia was asked to determine whether the 12-month imprisonment handed down by the Magistrates Court was excessive and whether the court had properly considered the time he had already spent in custody. The State Solicitor for Western Australia defended the sentence, arguing that it was within the appropriate range for the offence.

The central issue before the Court was whether the Magistrates Court had erred in its assessment of the appropriate sentence for the offence. The applicant argued that the court had failed to adequately consider the time he had already spent in custody, and that the 12-month sentence was excessive. The Court needed to determine whether the sentence was manifestly excessive or whether it was within the range of reasonable sentencing options. Additionally, the Court had to consider whether the Magistrates Court had properly taken into account the time already spent in custody.

The Court held that the sentence was not manifestly excessive and that the Magistrates Court had properly considered the time spent in custody. The Court found that the sentence was within the appropriate range for the offence, and that the Magistrates Court had exercised its discretion reasonably. The Court further found that the Magistrates Court had taken into account the time already spent in custody, and that there was no error in the sentencing process. The Court dismissed the application for judicial review.

The Court did not make any orders for the applicant's release or any other remedy. The Court found that the sentence imposed by the Magistrates Court was appropriate and that there had been no error in the sentencing process. The applicant's application for judicial review was dismissed.

Orders