K (a child) -v- PANAIA [2011] WASC 210

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 210
Published:	22/08/2011
Case No:	SJA:1064/2011	Heard:	15 AUGUST 2011
Coram:	HALL J	Delivered:	15/08/11
No of pages:	13	Judgment Part:	1 of 1
Result:	Extension of time to appeal refused Appeal dismissed
Category:	B
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Parties:	K (a child) LAWRENCE PANAIA ALEXANDER DAVID GEORGE PAICE
Catchwords:	Criminal law Sentence Extension of time to appeal after long delay Section 60(1) Road Traffic Act 1974 (WA) Whether permanent disqualification open for first and second offences Reference to a 'period' of disqualification includes permanent disqualification Whether permanent disqualification manifestly excessive Turns on own facts
Legislation:	Children's Court of Western Australia Act 1988 (WA) Justices Act 1902 (WA) Road Traffic Act 1974 (WA), s 59(3), s 60(1), s 60(3), s 76, s 78, s 106A Sentencing Act 1995 (WA), s 104
Case References:	Binns v Gardiner [2002] WASCA 337 Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1 Carter v Denham [1984] WAR 123 Horton v Burton (1999) 28 MVR 415 Horton v Burton [1999] WASCA 82; (1999) 29 MVR 295 House v The King (1936) 55 CLR 499 Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132 Matta v The Queen [2011] WASCA 2 Richards v Damianopolous [2002] WASCA 159 Tubbs v Pomykaj [2009] WASC 379

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : K (a child) -v- PANAIA [2011] WASC 210 CORAM : HALL J HEARD : 15 AUGUST 2011 DELIVERED : 15 AUGUST 2011 PUBLISHED : 22 AUGUST 2011 FILE NO/S : SJA 1064 of 2011 BETWEEN : K (a child)

Appellant

AND

LAWRENCE PANAIA

First Respondent

ALEXANDER DAVID GEORGE PAICE

Second Respondent

ON APPEAL FROM:

Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE

File No : PE 16076 of 1989, PE 19149 of 1989

(Page 2)

Catchwords:

Criminal law - Sentence - Extension of time to appeal after long delay - Section 60(1) Road Traffic Act 1974 (WA) - Whether permanent disqualification open for first and second offences - Reference to a 'period' of disqualification includes permanent disqualification - Whether permanent disqualification manifestly excessive - Turns on own facts

Legislation:

Children's Court of Western Australia Act 1988 (WA)

Justices Act 1902 (WA)
Road Traffic Act 1974 (WA), s 59(3), s 60(1), s 60(3), s 76, s 78, s 106A
Sentencing Act 1995 (WA), s 104

Result:

Extension of time to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms A S Rogers

First Respondent : Mr N T L John

Second Respondent : Mr N T L John

Solicitors:

Appellant : Andrew Maughan & Associates

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

(Page 3)

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

Binns v Gardiner [2002] WASCA 337
Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1
Carter v Denham [1984] WAR 123
Horton v Burton…

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 K (a child) v Panaia

Details

AGLC: K (a child) v Panaia [2011] WASC 210
Case: [2011] WASC 210
Decision Date: 22 AUGUST 2011

CaseChat Overview and Summary

In the matter of K (a child) v Panaia, the court was asked to determine whether an extension of time to appeal a decision was appropriate in the context of a long delay. The appellant, Panaia, had been convicted under section 60(1) of the Road Traffic Act 1974 (WA) for driving while disqualified. The central issue before the court was whether the trial judge erred in law in determining that a permanent disqualification from driving was an appropriate sentence for both a first and second offence. The court was also required to consider whether a permanent disqualification was manifestly excessive, given the specific circumstances of the case.

The court carefully examined the relevant statutory provisions and case law to determine the appropriate sentence for the offences. The court found that the reference to a 'period' of disqualification in the statute could indeed include a permanent disqualification. However, the court also considered the principle that the severity of the sentence should be proportionate to the offence and the circumstances of the offender. The court concluded that while a permanent disqualification might be appropriate in some cases, it was not necessarily so in all circumstances. The court held that the question of whether a permanent disqualification was manifestly excessive depended on the unique facts of each case.

Ultimately, the court found that the trial judge had not erred in imposing a permanent disqualification. The court held that the trial judge had adequately considered the principles of sentencing and the specific circumstances of the case. The court also found that the delay in appealing did not justify an extension of time. Therefore, the appeal was dismissed, and the extension of time to appeal was refused.

Orders

Orders of the court

Extension of time to appeal refused

Appeal dismissed

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

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