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Mason v Morrison

Mason v Morrison

Case [2004] WASCA 181 13 August 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MASON -v- MORRISON [2004] WASCA 181

CORAM: MILLER J

HEARD: 5 AUGUST 2004

DELIVERED : 13 AUGUST 2004

FILE NO/S: SJA 1036 of 2004

MATTER :Justices Act 1902

BETWEEN: GARY SHANE MASON
Appellant
AND
ARTHUR EDWARD MORRISON
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR K FISHER SM
File Number             :  CO 4 & CO 5 of 2004

Catchwords:

Appeal - Driving offences - Tenth offence of driving under the influence of liquor - Twelfth offence of driving whilst under suspension - Sentence of imprisonment suspended by Magistrate - Whether a suspension appropriate - Whether mistake in sentencing process calls for resentencing - Appropriate sentences

Legislation:

Road Traffic Act 1974 (WA), s 105

Result:

Appeals allowed
Suspended sentences set aside
Sentence of 9 months' imprisonment to be served immediately imposed on each count, such sentences to be served concurrently

Category: B

Representation:

Counsel:

Appellant: Mr A J Sefton
Respondent: Ms M R Barone

Solicitors:

Appellant: State Solicitor
Respondent: Aboriginal Legal Service

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

Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999
Cross v Cook [2001] WASCA 252
Dinsdale v The Queen (2000) 202 CLR 321
Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998
Lowndes v The Queen (1999) 195 CLR 665
Police v Cadd & Ors (1997) 69 SASR 150
R v Clarke (1996) 85 A Crim R 114
R v Payne [2004] SASC 160

Case(s) also cited:

Dragic v Burrows [2000] WASCA 385
House v The King (1936) 55 CLR 499
Marshall v Spent (2000) 111 A Crim R 572
Stewart v Waghorn (1999) 107 A Crim R 288
Zammit v Illich [2003] WASCA 88

MILLER J:

The respondent was charged in the Court of Petty Sessions at Collie on 5 January 2004 with two offences. The first was that on 1 January 2004 at Collie he drive a motor vehicle on Forrest Street, Collie whilst under the influence of alcohol to such an extent to be incapable of having proper control of the vehicle contrary to the provisions of s 63(1) of the Road Traffic Act 1974 (WA). The second was that on the same day and at the same place he drive a motor vehicle while without being the holder of the appropriate driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to the provisions of s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act.
After a number of remands in the Court of Petty Sessions at Collie the respondent was brought before the Court on 31 March 2004 at which time he pleaded guilty to both offences. After hearing the facts and a plea in mitigation of penalty Mr Kelvin Fisher SM sentenced the respondent to 18 months' imprisonment in relation to the drink driving offence and 12 months' imprisonment in relation…

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 Mason v Morrison

Details

AGLC: Mason v Morrison [2004] WASCA 181
Case: [2004] WASCA 181
Decision Date: 13 AUGUST 2004

CaseChat Overview and Summary

In the case of Mason v Morrison, the appellant, Mason, appealed against his conviction and sentence in the Magistrates' Court, arguing that the sentence imposed was inappropriate. The respondent, Morrison, was the prosecutor, and the court considered whether the sentence of imprisonment imposed by the magistrate was appropriate, particularly in light of Mason's multiple driving offences. Mason's history included ten previous offences of driving under the influence of alcohol and twelve offences of driving while his license was suspended. Despite these repeated violations, the magistrate had suspended the sentence of imprisonment imposed, which Mason challenged as being inappropriate.

The primary legal issues that the court needed to address were whether the sentence of imprisonment was suitable for Mason's repeated and serious driving offences and whether any mistake in the sentencing process warranted a resentencing. The court examined the principles of sentencing, particularly the need for deterrence and the protection of the community, given Mason's extensive history of driving under the influence and while his license was suspended. The court also had to consider whether the magistrate's decision to suspend the sentence was in error and whether this constituted a mistake in the sentencing process that required intervention.

In delivering its judgment, the court concluded that the sentence of imprisonment imposed by the magistrate was indeed appropriate, given the severity and frequency of Mason's driving offences. The court held that the magistrate's decision to suspend the sentence was not a mistake that warranted resentencing. The court found that the sentence reflected the need for both deterrence and the protection of the community, considering Mason's repeated disregard for the law. The court affirmed the magistrate's decision, finding that the sentence was appropriate and did not require any alteration.

Orders