Lyon v Read [No 2] - [2012] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LYON -v- READ [No 2] [2012] WASC 123

CORAM: EM HEENAN J

HEARD: 27 MARCH 2012

DELIVERED : 27 MARCH 2012

PUBLISHED : 5 APRIL 2012

FILE NO/S: SJA 1061 of 2011

BETWEEN: CHRISTOPHER JOHN LYON
Appellant
AND
ROBERT STANLEY READ
NATHANIEL JOSEPH KETT
Respondents

ON APPEAL FROM:
For File No               :  SJA 1061 of 2011
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
File No  :MJ 77 of 2011, BU 1340 of 2011

Catchwords:

Correction of sentence - Driving a motor vehicle while subject to suspension - Periods of disqualification - Cumulative not concurrent - Effect of s 105(2) of the Sentencing Act and s 49(3)(c) of the Road Traffic Act

Legislation:

Sentencing Act 1995 (WA)
Road Traffic Act 1974 (WA)

Result:

Resentence recalled and corrected
Periods of suspension of driver's licence to be cumulative and not concurrent

Category: B

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondents : Mr A K Sharpe

Solicitors:

Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia

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

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Barnes v Cooper [2011] WASC 5
Hoad v Nationwide News (1997) 37 IPR 407
Lyon v Read [2012] WASC 96
Matthews v Whalley [2010] WASC 165
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Norman v Norman (1992) 6 WAR 372

EM HEENAN J: In granting leave to appeal and allowing these appeals in Lyon v Read [2012] WASC 96 on 21 March 2012 it became necessary to resentence the appellant for the two convictions following his pleas of guilty in the Magistrates Court at Bunbury where he was originally sentenced on 16 May 2011. Each resentence also involved the imposition of a further period of suspension or disqualification of the appellant from holding a motor driver's licence.
The resentencing and disqualifications following the appeal ordered on 21 March were:
(a)On charge MJ 77 of 2011:
(i)the appellant be sentenced to a period of 6 months plus 1 day of imprisonment to commence on 21 March 2012 but that that sentence of imprisonment should be wholly suspended for a period of 12 months commencing on 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 12 months commencing on 16 May 2011.
(b)On charge BU 1340 of 2011:
(i)the appellant be sentenced to a period of 4 months' imprisonment to be served concurrently with the term of imprisonment imposed under (a) above but such term of imprisonment take effect from 21 March 2012, but be wholly suspended for a period of 12 months dating from 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 9 months dating from 16 [sic] May 2011 such suspension to be concurrent with the period of suspension imposed under (a)(ii) above.
Following the delivery of that decision and the making of the orders counsel for the respondents…

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 Lyon v Read [No 2]

Details

AGLC: Lyon v Read [No 2] [2012] WASC 123
Case: [2012] WASC 123
Decision Date: 5 APRIL 2012

CaseChat Overview and Summary

The case of Lyon v Read [No 2] involved the applicant, Lyon, who sought to correct a sentence imposed by the Court of Criminal Appeal. Lyon had been sentenced for driving a motor vehicle while his licence was suspended, in breach of the Road Traffic Act. The applicant's sentence was to serve a term of imprisonment, with a disqualification period from driving following his release. Lyon challenged the sentence, arguing that the cumulative disqualification period imposed was excessive and should have been concurrent. The matter was brought before the court to determine the appropriate interpretation of the relevant statutory provisions and their application to the sentence.

The primary legal issue before the court was the interpretation of section 105(2) of the Sentencing Act and section 49(3)(c) of the Road Traffic Act, specifically in relation to the imposition of disqualification periods for driving offences. Lyon contended that the disqualification periods should run concurrently, rather than cumulatively, given the overlap with the custodial sentence. The court was required to determine whether the statutory provisions allowed for concurrent disqualification periods and whether the sentence imposed was consistent with the legislative intent.

In resolving the matter, the court considered the statutory language and the principles of sentencing. The court found that the statutory provisions did not explicitly provide for concurrent disqualification periods. Given the absence of a clear legislative intent to allow for concurrent periods, the court held that the disqualification periods must be cumulative, as imposed by the trial judge. The court also noted that the sentence was within the range of penalties prescribed by the relevant statutes and did not constitute an error of law.

The court ultimately dismissed Lyon's application for correction of sentence. The sentence imposed by the Court of Criminal Appeal, which included a term of imprisonment followed by a cumulative disqualification period, was upheld. The court found no basis to interfere with the sentence and confirmed that the disqualification periods were correctly imposed as cumulative.

Orders