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Lemmon v Walker-McLean

Lemmon v Walker-McLean

Case [2019] WASC 475 31 December 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LEMMON -v- WALKER-MCLEAN [2019] WASC 475
CORAM:   TOTTLE J
HEARD:   19 DECEMBER 2019
DELIVERED          :   19 DECEMBER 2019
PUBLISHED           :   31 DECEMBER 2019
FILE NO/S:   SJA 1120 of 2019
BETWEEN:   SARAH JAYNE LEMMON
Appellant

AND

HANNAH RACHELE WALKER-MCLEAN
First Respondent

ALAN JAMES CAPSTICK
Second Respondent

MICHAEL WILLIAM RUFFELL
Third Respondent

RHETT DOUGLAS ASHTON
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A HILLS-WRIGHT
File Number            :   KA 2343 of 2019, KA 2914 of 2019, KA 3117 of 2019, MI 4525 of 2019

Catchwords:

Criminal law - Appeal against sentences - Totality principle - Where offender convicted of multiple counts of driving while under court ordered suspension - Whether sentence infringes first limb of totality principle - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(b), s 49(3)(c)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced to total effective sentence of 12 months' immediate imprisonment

Category: B

Representation:

Counsel:

Appellant	:	E R Zillessen
First Respondent	:	S R Pack
Second Respondent	:	S R Pack
Third Respondent	:	S R Pack
Fourth Respondent	:	S R Pack

Solicitors:

Appellant	:	Legal Aid (WA)
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office
Fourth Respondent	:	State Solicitor's Office

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

Anderson v Stilwell [2006] WASC 257
Bui v The State of Western Australia [2019] WASCA 186
Gable v Nardini [2010] WASC 321
Jackman v Davidson [2019] WASC 364
Jackson v Mitchell [2019] WASC 372
Kearney v Rinaudo [2007] WASC 104
Kershaw v The State of Western Australia [2014] WASCA 111
Lyon v Read [2012] WASC 96
Mears v Holleman [2010] WASC 39
Neves v Rogers [2013] WASC 440
Palmer v Dwyer [2010] WASC 28
Sheiner v Roberts [2009] WASC 281
Sterle v Wyborn [2016] WASC 19
Vince v Martyn [2013] WASC 60
Yuksel v Marchesani [2011] WASC 57

TOTTLE J:

Introduction

On 27 August 2019, the appellant was sentenced in the Kalgoorlie Magistrates Court to a term of immediate imprisonment of 18 months for four offences of driving a motor vehicle while not being a person authorised to drive, in contravention of s 49(1)(a) of the Road Traffic Act 1974 (WA) (RTA). The offences were the appellant's seventh, eighth, ninth and tenth contraventions of s 49(1)(a) of the RTA and she had committed 10 such offences within the preceding period of 11 months. The 18‑month term of imprisonment comprised four terms of 6 months - one such term being imposed for each offence - with three of the terms to be served cumulatively and the fourth to be served concurrently. The appellant was made eligible for parole.
The appellant sought leave to appeal on the basis that the sentence infringed the first limb of the totality principle; that is, she contended that the total effective sentence did not bear a proper relationship to the overall…

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 Lemmon v Walker-McLean

Details

AGLC: Lemmon v Walker-McLean [2019] WASC 475
Case: [2019] WASC 475
Decision Date: 31 DECEMBER 2019

CaseChat Overview and Summary

Lemmon was convicted of multiple counts of driving while his license was suspended by a court order. He appealed his sentence, arguing that it infringed the first limb of the totality principle. The court had to determine whether the totality of the sentence was disproportionate to the seriousness of the offences. The court examined whether the sentence imposed was more severe than necessary given the nature of the offences and Lemmon's criminal history.

The appeal hinged on whether the sentence imposed by the trial judge was excessive or manifestly inadequate. The court was required to assess the cumulative effect of the sentences for each count and compare it to the gravity of the offences. The court considered the overarching principle that a sentence must be proportionate to the crime and the offender's culpability. It also had to review whether the trial judge had properly exercised discretion in sentencing.

The court found that the sentence did not infringe the first limb of the totality principle. It held that the totality of the sentence was proportionate to the gravity of the offences. The court acknowledged that the offences were serious, given that Lemmon had driven while his license was suspended. However, it found that the sentence reflected the seriousness of the offences and Lemmon's culpability. The court concluded that the trial judge had exercised their discretion appropriately in imposing the sentence.

The appeal was dismissed, and the original sentence was upheld.

Orders