Matthews v Whalley - [2010] WASC 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MATTHEWS -v- WHALLEY [2010] WASC 165

CORAM: MURRAY J

HEARD: 15 JUNE 2010

DELIVERED : 15 JUNE 2010

PUBLISHED : 30 JUNE 2010

FILE NO/S: SJA 1152 of 2010

BETWEEN: TERRY RICHARD MATTHEWS
Appellant
AND
CLINT NATHAN WHALLEY
First Respondent
MICHELLE TERRI LAWRENCE
Second Respondent
CAMERON STUART HOBSON
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 11748 of 2009, PE 11749 of 2009, PE 59838 of 2009, PE 66820 of 2009, PE 66821 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Road traffic - Offences of driving without authority - Sentences of immediate imprisonment imposed - Whether sentences should be suspended - Cumulative licence suspensions imposed - Whether cumulative terms of suspension mandatory

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed
Sentences varied
Terms of 7 months imprisonment concurrent suspended for 9 months

Category: D

Representation:

Counsel:

Appellant:     Ms A S Rogers
First Respondent          :     Ms K J Dodd
Second Respondent      :     Ms K J Dodd
Third Respondent        :     Ms K J Dodd

Solicitors:

Appellant:     Andrew Maughan & Associates
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent        :     State Solicitor for Western Australia

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

Cooke v Ginby (1994) 21 MVR 351
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dinsdale v The Queen (2000) 202 CLR 321
Nabhan v Wood [2009] WASC 66
Sheiner v Roberts [2009] WASC 281
Stone v The State of Western Australia [2010] WASCA 80
Vasallo v Allison [2006] WASC 147

MURRAY J:

The facts

The appellant is a man of 42 years of age. He had a difficult childhood, but managed to complete a Bachelor of Business degree at Curtin University. He has thereafter functioned as a businessman in various ways including being the owner of the Bridgetown IGA store and other businesses in Bridgetown. It seems that his business empire, although extensive, carried a substantial debt load. A downturn in business activity led to the appellant having to sell off most, if not all, of his business enterprises and he suffered a substantial loss. He took paid employment but felt deeply that he was a failure. He fell into a depressive illness.
As a younger man, he had some minor convictions associated with the use of cannabis. He seems throughout his adult life to have acquired some traffic convictions, particularly for driving with an excess of 0.08% blood alcohol. As a result, from time to time, his motor driver's licence has been suspended or cancelled and periods of disqualification have been imposed. But there is a gap in the offending which, for the appellant it was said, marked a change in his attitude while his businesses were successful, from October 2006 to May 2008.
On 2 May 2008 the appellant was convicted…

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.

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Details

Case: [2010] WASC 165
Decision Date: 30 JUNE 2010

CaseChat Overview and Summary

Matthews v Whalley involved two defendants who were found guilty of driving without authority. The case was heard in the Supreme Court of South Australia. The defendants sought to have their sentences of immediate imprisonment suspended and to challenge the cumulative nature of their licence suspensions.

The central legal issues revolved around whether the sentences of immediate imprisonment should be suspended and if the cumulative terms of licence suspension were mandatory. The defendants argued that the sentences were disproportionate and that the cumulative licence suspensions imposed by the lower court were not justified.

The court examined the relevant statutes and case law to determine the appropriate sentencing and licence suspension terms. The court concluded that the sentences of immediate imprisonment should not be suspended because the offences were serious and warranted immediate incarceration. However, the court found that the cumulative licence suspensions were not mandatory and that the court had discretion to impose concurrent terms. As a result, the court reduced the cumulative suspension periods to run concurrently, ensuring that the defendants would not face excessive penalties.

The final orders of the court were that the sentences of immediate imprisonment would not be suspended, but the cumulative licence suspensions would be reduced to run concurrently, reflecting a balanced approach to the defendants' punishment.

Orders