McCOLGAN -v- SEILER [2000] WASCA 168

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 168
Case No:	SJA:1032/2000	Heard:	16 JUNE 2000
Coram:	HEENAN J	Delivered:	22/06/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Penalty varied by setting aside disqualification
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Parties:	ANTHONY JOHN McCOLGAN RONALD THOMAS SEILER
Catchwords:	Traffic offences Careless driving Penalty Colliding with rear of vehicle stopped in line of traffic on freeway Inattention more than momentary Appeal against disqualification for nine months Weight to be given to circumstances of offence and antecedents of offender
Legislation:	Road Traffic Act 1974, s 62 Sentencing Act 1995, s 105
Case References:	Logan v Weary, unreported; SCt of WA (Burt CJ); Library No 4951; 13 June 1983 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 2 February 1994 Caine v Penman, unreported; SCt of WA (Pidgeon J); Library No 6435; 8 September 1986 Chan v The Queen (1989) 38 A Crim R 337 Haines v Jupp, unreported; SCt of WA (Wallace J); Library No 4523; 26 May 1982 Harling v Hall (1997) 94 A Crim R 437 House v The King (1936) 56 CLR 499 Ladlow v Hayes (1983) 8 A Crim R 377 Lewis v Bennett, unreported; SCt of WA (White J); Library No 930406; 14 July 1993 Lowndes v The Queen (1999) 73 ALJR 1007 Lumney v Bennett, unreported; SCt of WA (Scott J); Library No 930697; 6 December 1993 Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 Nevermann v The Queen (1989) 43 A Crim R 347 R v Tait (1979) 46 FLR 386 Svenson v Cooper, unreported; SCt of WA (Olney J); Library No 6411; 21 August 1986

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : McCOLGAN -v- SEILER [2000] WASCA 168 CORAM : HEENAN J HEARD : 16 JUNE 2000 DELIVERED : 22 JUNE 2000 FILE NO/S : SJA 1032 of 2000 BETWEEN : ANTHONY JOHN McCOLGAN

Appellant

AND

RONALD THOMAS SEILER

Respondent

Catchwords:

Traffic offences - Careless driving - Penalty - Colliding with rear of vehicle stopped in line of traffic on freeway - Inattention more than momentary - Appeal against disqualification for nine months - Weight to be given to circumstances of offence and antecedents of offender

Legislation:

Road Traffic Act 1974, s 62

Sentencing Act 1995, s 105

Result:

Appeal allowed

Penalty varied by setting aside disqualification

(Page 2)

Representation:

Counsel:

Appellant : Mr G W Massey

Respondent : Mr F Sunderland

Solicitors:

Appellant : Fiocco Hopkins Nash

Respondent : State Crown Solicitor

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

Logan v Weary, unreported; SCt of WA (Burt CJ); Library No 4951; 13 June 1983

Case(s) also cited:

Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 2 February 1994
Caine v Penman, unreported; SCt of WA (Pidgeon J); Library No 6435; 8 September 1986
Chan v The Queen (1989) 38 A Crim R 337
Haines v Jupp, unreported;…

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 McColgan v Seiler

Details

AGLC: McColgan v Seiler [2000] WASCA 168
Case: [2000] WASCA 168
Decision Date: 22 JUNE 2000

CaseChat Overview and Summary

In McColgan v Seiler, the defendant Seiler appealed against a penalty imposed by the Magistrates’ Court of Victoria, following a conviction for careless driving. The incident involved Seiler colliding with the rear of a vehicle that was stopped in a queue on the freeway, a result of Seiler’s inattention for more than a momentary period. The Magistrates’ Court disqualified Seiler from driving for nine months. Seiler sought to challenge the severity of this penalty on appeal.

The court had to determine the appropriate weight to give to the circumstances of the offence and Seiler’s antecedents. Seiler argued that the penalty was excessive given the nature of the incident and his otherwise clean driving record. The court considered the principles of sentencing and penalty in traffic offences, particularly the importance of deterrence and protection of the public. The court also reviewed the precedents regarding careless driving cases and the factors that influence the severity of penalties.

The court found that the penalty imposed was disproportionate given the circumstances and Seiler’s antecedents. It held that while the incident did involve significant inattention, the nature of the collision and Seiler’s otherwise good record meant the penalty was excessively severe. The court allowed the appeal and varied the penalty by setting aside the disqualification, thereby allowing Seiler to retain his driving licence.

Orders

Orders of the court

Appeal allowed

Penalty varied by setting aside disqualification

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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