JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JACKMAN -v- DAVIDSON & ANOR [2019] WASC 364
CORAM: MCGRATH J
HEARD: 25 SEPTEMBER 2019
DELIVERED : 11 OCTOBER 2019
FILE NO/S: SJA 1083 of 2019
BETWEEN: KYRONE JOHN JACKMAN
Appellant
AND
BRUCE DAVIDSON
First Respondent
SCOTT STENSON
Second Respondent
ON APPEAL FROM:
For File No: SJA 1083 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HUSTON
File Number : WU 26 of 2019, WU 28 of 2019, NE 225 of 2019
Catchwords:
Criminal law – Careless driving – No authority to drive – Appeal against sentence – Express and implied errors of law – Manifestly excessive –Totality principle – Eligibility for parole – Denial of procedural fairness
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Sentencing Act 1995 (WA), s 6, s 39, s 76, s 89
Result:
Leave to appeal granted on ground 4
Appeal allowed on ground 4
Parole eligibility granted
Category: B
Representation:
Counsel:
| Appellant | : | Ms K E Turtley-Chappel |
| First Respondent | : | Ms E J O'Keeffe |
| Second Respondent | : | Ms E J O'Keeffe |
Solicitors:
| Appellant | : | Aboriginal Legal Service of Western Australia (Inc) |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Drage v The State of Western Australia [2015] WASCA 145
Gelmi v The State of Western Australia [2019] WASCA 139
House v King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 163 ALD 38
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Holder [1983] 3 NSWLR 245
Roffey v The State of Western Australia [2007] WASCA 246
Rubin v The State of Western Australia [2016] WASCA 2
Ryan v The State of Western Australia [2011] WASCA 7
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Truslove v The State of Western Australia [2015] WASCA 1
Winwood v Brown [2011] WASC 123
Woods v The Queen (1994) 14 WAR 341
MCGRATH J:
On 6 June 2019, Mr Jackman was sentenced in respect of eight charges:
(1)two charges of no authority to drive contrary to s 49(1)(a) and (3)(b) or (3)(c) of the Road Traffic Act 1974 (WA) (NE 225/2019, WU 28/2019);
(2)one charge of driving a motor vehicle under the influence of alcohol contrary to s 63(1)(a) of the Road Traffic Act (NE 226/2019);
(3)one charge of giving false personal details to…
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- AGLC
- Jackman v Davidson [2019] WASC 364
- Case
- [2019] WASC 364
- Decision Date
CaseChat Overview and Summary
The court was required to consider whether the sentence imposed by the magistrate was manifestly excessive, and whether there were any errors of law in the magistrate’s assessment of parole eligibility. Specifically, the court examined whether the magistrate had denied procedural fairness by not allowing adequate opportunity for submissions on parole eligibility and by making a finding of unwillingness to change without proper notice or confrontation.
In addressing these issues, the court found that the magistrate had indeed allowed submissions on parole eligibility and had considered the submissions made by counsel. The court held that there was no denial of procedural fairness as the submissions were made and considered. Furthermore, the court found that the magistrate's consideration of the appellant's willingness to change was not flawed, as the appellant had an opportunity to address this issue and the magistrate had considered all relevant submissions.
The appeal was dismissed, and the original sentence and decision on parole eligibility were upheld. The court determined that the sentence was not manifestly excessive and that there was no error of law in the magistrate's assessment of parole eligibility.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
By ground 5, Mr Jackman contends that the magistrate erred by failing to give counsel and the prosecutor an adequate opportunity to address any issues relevant to the assessment of parole eligibility. This ground, therefore, contends that the magistrate denied procedural fairness to Mr Jackman. That is, there has been a denial of an opportunity to make submissions and that denial is material to the Court's decision.[68] Mr Jackman also contends in ground 5 that the magistrate erred in finding that he had no willingness to change in circumstances where the magistrate did not provide Mr Jackman notice that he was not prepared to make that finding and where it was not specifically controverted by the prosecutor.[69] It is asserted by Mr Jackman that that finding was a material consideration in the magistrate determining not to grant eligibility for parole. [68] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 163 ALD 38, 49 [38].[69] Appellant's Outline of Submissions, filed 12 September 2019 [66]. Counsel for Mr Jackman during his plea in mitigation expressly submitted that the magistrate should make an order granting parole eligibility.[70] The prosecutor did not make any submissions regarding parole eligibility. His Honour in his sentencing remarks considered the question of whether to order eligibility for parole. His Honour stated that Mr Jackman would not be eligible for parole.[71] At the conclusion of delivering the sentencing remarks but before formally imposing sentence, counsel for Mr Jackman further addressed his Honour with respect to parole eligibility.[72] The magistrate permitted further submissions to be made by counsel.[73] [70] ts 10, 6 June 2019.[71] ts 21, 6 June 2019.[72] ts 21 - 22, 6 June 2019.[73] ts 21 - 22, 6 June 2019. Counsel for Mr Jackman observed that he was unaware that parole was opposed or not supported and, therefore, did not outline why parole should be granted. Counsel then made submissions regarding the granting of parole, specifically addressing his Honour's concerns as to why parole should not be granted. His Honour then observed that submissions had now been made on behalf of Mr Jackman and that after 'carefully consider[ing] the issue of parole eligibility […] the reasons I've given previously for [Mr Jackman] not being eligible for parole persist'.[74][74] ts 22, 6 June 2019. Accordingly, Mr Jackman's contention that he was not granted procedural fairness is untenable. His Honour clearly received submissions from counsel and then determined the issue of parole. The further contention is that during the plea in mitigation it was asserted on behalf of Mr Jackman that he was willing to change. Given that this submission was not controverted by the prosecutor, if the magistrate was not prepared to accept that uncontended fact then the magistrate was required to give Mr Jackman notice of such.[75] His Honour, when considering the issue of parole, stated that 'a significant factor from the court's point of view is your apparent unwillingness to change behavior and that to some extent is demonstrated by your unlawful behavior in Newman on 18 April'.[76] Counsel for Mr Jackman then made further submissions regarding his willingness to change, submitting that he 'does have a willingness to change … he did think about matters in custody and has come to realise he really needs to address his alcohol and he specifically expressed to me that he wants to do counselling for his drug and alcohol'.[77] His Honour then, as I have observed, directly considered these further submissions concerning the parole issue and then stated that he finds that there has been an unwillingness to change. [75] Appellant's Outline of Submissions, filed 12 September 2019 [66].[76] ts 21, 6 June 2019.[77] ts 21, 6 June 2019.