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Knights v Ward

Knights v Ward

Case [2022] WASC 267 18 August 2022

Appeal

Sentencing

Totality Principle

Manifestly Excessive Sentence

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KNIGHTS -v- WARD [2022] WASC 267
CORAM:   SOLOMON J
HEARD:   22 JULY 2022
DELIVERED          :   17 AUGUST 2022
PUBLISHED           :   18 AUGUST 2022
FILE NO/S:   SJA 1029 of 2022
BETWEEN:   ASHLEIGH RITA KNIGHTS
Appellant
AND
ANDREW ROGER WARD
Respondent

ON APPEAL FROM:
For File No:   SJA 1029 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   MH 4061 - 4080 of 2021

Catchwords:

Criminal law – Appeal against sentence – Totality principle – Where offender convicted of multiple counts of driving without authority – Whether sentence infringes totality principle – Whether sentence manifestly excessive – Whether sentence of imprisonment should have been suspended - Whether delay in charging was mandatory consideration in sentencing - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 5
Criminal Appeals Act 2004 (WA), s 8(1)
Road Traffic Act1974 (WA), s 11(3), s 49, s 49(1)(a), s 49(1)(c)(ii), s 49(3)(c), s 49(9)

Sentencing Act 1995 (WA), s 39(3), s 89

Result:

Appeal allowed
Appellant re-sentenced to 7 months' immediate imprisonment

Category: B

Representation:

Counsel:

Appellant	:	S Rafferty
Respondent	:	T Ledger

Solicitors:

Appellant	:	Seamus Rafferty Barristers & Solicitors
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Dinsdale v The Queen (2000) 202 CLR 321
Eriha v The State of Western Australia [2011] WASCA 167
Fogg v The State of Western Australia [2011] WASCA 11
Jackman v Davidson & Anor [2019] WASC 364; (2019) 90 MVR 11
Kabambi v The State of Western Australia [2019] WASCA 44
Lemmon v Walke-Mclean [2019] WASC 475; (2019) 91 MVR 101
Lyon v Read [2012] WASC 96
Matthews v Whalley [2010] WASC 165
Nabhan v Wood [2009] WASC 66; (2009) 52 MVR 273
Neves v Rogers [2013] WASC 440
Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186
Roffey v The State of Western Australia [2007] WASCA 246
Rossiter v Francisty [2005] WASC 270
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Sevelj v Roffey [2002] WASCA 20; (2002) 35 MVR 504
Sheiner v Roberts [2009] WASC 281
Wilson v Pymm [2015] WASC 449; (2015) 73 MVR 464

SOLOMON J:

This is an appeal against sentence. The appellant, Ms Knights, is a 29-year-old woman. Over a period of 12 months from 22 September 2020 to 24 September 2021, Ms Knights committed the driving offences set out at paragraph [3] below. Ms Knights was first spoken to by police on 31 October 2021 and charged for all the offences on 11 November 2021.[1]
[1] Appellant's Outline of Submissions (9 June 2022) [2].
In the Magistrates Court on 22 February 2022, Ms Knights pleaded guilty to all the charges. In relation to the offences of driving without authority contrary to s 49 of the Road Traffic Act1974 (WA) (the Act), Magistrate Atkins…

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 Knights v Ward

Details

AGLC: Knights v Ward [2022] WASC 267
Case: [2022] WASC 267
Decision Date: 18 AUGUST 2022

CaseChat Overview and Summary

The appeal before the court involved the sentencing of Ward, who had been found guilty of multiple counts of driving without authority. The primary issue before the court was whether the sentence imposed by the lower court infringed upon the totality principle, which requires that the overall punishment should not be disproportionate to the aggregate seriousness of the individual offences. Additionally, the court needed to determine if the sentence was manifestly excessive, if it should have been suspended, and whether the delay in charging was appropriately considered during sentencing. The case hinged on its unique facts and the specific circumstances surrounding Ward's convictions and the resulting sentence.

The court began its analysis by examining the totality principle, which mandates that the cumulative sentence should not be excessive in relation to the aggregate seriousness of the individual offences. It held that the sentence imposed needed to be proportionate to the total criminality exhibited by Ward. Furthermore, the court assessed if the sentence of imprisonment was appropriate or if it should have been suspended, considering the nature of the offences and Ward's criminal history. The court also scrutinised whether the delay in charging was a mandatory consideration during sentencing, a factor which could potentially influence the severity of the punishment.

In determining the appropriate sentence, the court considered the totality principle, the nature of the offences, and the delay in charging. It found that the sentence imposed was not manifestly excessive and did not infringe upon the totality principle. The court also held that there was no basis for the sentence of imprisonment to have been suspended. In reaching its conclusion, the court emphasised that the delay in charging was not a mandatory consideration in sentencing and did not warrant a reduction in the sentence. Ultimately, the court upheld the sentence imposed by the lower court.

The court dismissed the appeal and affirmed the sentence imposed by the lower court. It held that the sentence was proportionate to the aggregate criminality and did not infringe upon the totality principle. The court also found that there was no basis for the sentence of imprisonment to have been suspended and that the delay in charging was not a mandatory consideration in sentencing. The decision serves as a reminder to lower courts of the importance of considering the totality principle and other relevant factors when imposing sentences on offenders convicted of multiple counts of driving without authority.

Orders