McDonald v White

Case [2007] WASCA 213

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   McDONALD v WHITE [2007] WASCA 213

CORAM:   STEYTLER P

McLURE JA
EM HEENAN AJA

HEARD:   5 OCTOBER 2007

DELIVERED          :   5 OCTOBER 2007

PUBLISHED           :  15 OCTOBER 2007

FILE NO/S:   CACR 81 of 2007

BETWEEN:   LISA MARY McDONALD

Appellant

AND

PAUL DAVID WHITE
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JOHNSON J

Citation  :McDONALD -v- WHITE [2007] WASC 138

File No  :SJA 1038 of 2007

Catchwords:

Criminal law and procedure - Appeal against sentence - Reckless driving - Driving while licence under suspension - Unlawful damage - Guilty plea - Failure by magistrate to state in open court that guilty plea taken into account in passing sentence as required by the Sentencing Act 1995 (WA) s 4 - Inference that magistrate failed to consider guilty plea - Appellant re-sentenced

Legislation:

Sentencing Act 1995 (WA), s 8(2), s 8(4)

Result:

Appeal allowed
Appellant re-sentenced to a total of 10 months' imprisonment

Category:    D

Representation:

Counsel:

Appellant:     Mr D S Hunter

Respondent:     Mr C S Bydder

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

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

Anderson v Heath [2005] WASC 253

Anderson v Stilwell [2006] WASC 257

Anderson v The State of Western Australia [2005] WASCA 228

Austin v Grapes [2004] WASCA 102

Bakdadi v O'Neill [2003] WASCA 267

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Forbes v Durant [1999] WASCA 85

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203

Jones v The State of Western Australia [2006] WASCA 181

Kearney v Rinaudo [2007] WASC 104

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASC 138

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Rossiter v Francisty [2005] WASC 270

  1. JUDGMENT OF THE COURT:  On 6 March 2007 the appellant was convicted in the Magistrates Court at Busselton on five charges.  The first related to an offence of unlawful damage to property committed on 1 January 2007.  The other four charges related to driving offences committed on 13 February 2007.  These were offences of driving while the appellant's driver's licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so.  The appellant made an early plea of guilty to each of the offences charged.  She was sentenced to a total term of 15 months' imprisonment and to a total of $1,400 in fines.  She was also disqualified from holding a driver's licence for 12 months.  She appealed against the sentences of imprisonment imposed upon her.  The appeal was dismissed by a single judge of the Supreme Court, Johnson J.  The appellant has been given leave to appeal to this Court…

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Details
AGLC
McDonald v White [2007] WASCA 213
Case
[2007] WASCA 213
Decision Date

CaseChat Overview and Summary

In the case of McDonald v White, the appellant, McDonald, appealed against her sentence imposed by the Magistrates Court at Busselton. McDonald was convicted on five charges, including unlawful damage to property, driving while her license was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving, and failing to stop when called upon by police officers. McDonald made an early guilty plea to each of the offences charged and was sentenced to a total term of 15 months' imprisonment, a total of $1,400 in fines, and a 12-month disqualification from holding a driver's licence. The appeal was dismissed by a single judge of the Supreme Court, Johnson J. McDonald was granted leave to appeal to the Court on two of the grounds raised by her. The Court allowed the appeal, set aside the order made by Johnson J and the sentences imposed by the Magistrate, and re-sentenced McDonald.

The primary legal issue in this case was whether the magistrate failed to consider McDonald's guilty plea when passing the sentence, as required by the Sentencing Act 1995 (WA) s 4. The Court found that the magistrate did not explicitly state in open court that the guilty plea was taken into account in passing the sentence. The Court inferred that the magistrate failed to consider the guilty plea, which could have led to a lesser sentence. The Court also considered the seriousness of McDonald's offences, including her reckless driving and unlawful damage to property, and the need to deter her and others from engaging in similar conduct.

The Court re-sentenced McDonald to a total of 10 months' imprisonment, finding that this was an appropriate sentence taking into account the seriousness of the offences, the need for deterrence, and the fact that McDonald had pleaded guilty. The Court noted that the original sentence of 15 months' imprisonment was excessive and did not reflect the appropriate discount for the guilty plea. The Court also noted that the fines and disqualification from holding a driver's licence were appropriate. The Court allowed McDonald's appeal, set aside the order made by Johnson J and the sentences imposed by the Magistrate, and re-sentenced McDonald to a total of 10 months' imprisonment.

Orders

Orders of the court

Appeal allowed

Appellant re-sentenced to a total of 10 months' imprisonment (Judgment of the Court)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 6 March 2007 the appellant was convicted in the Magistrates Court at Busselton on five charges. The first related to an offence of unlawful damage to property committed on 1 January 2007. The other four charges related to driving offences committed on 13 February 2007. These were offences of driving while the appellant's driver's licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so. The appellant made an early plea of guilty to each of the offences charged. She was sentenced to a total term of 15 months' imprisonment and to a total of $1,400 in fines. She was also disqualified from holding a driver's licence for 12 months. She appealed against the sentences of imprisonment imposed upon her. The appeal was dismissed by a single judge of the Supreme Court, Johnson J. The appellant has been given leave to appeal to this Court against the decision of Johnson J, but only on two of the grounds raised by her. At the conclusion of argument on the appeal we allowed the appeal, set aside the order made by Johnson J and the sentences imposed by the Magistrate and re‑sentenced the appellant. These are our reasons for doing so. The offence of unlawful damage to property was committed at 8.40 am on 1 January 2007. The appellant was the former de facto partner of the complainant, Mr Neil Finney. She and Finney had a 2‑year‑old child. The appellant wanted to see the child, who was in Finney's house at the time. She consequently went to his house. She was then affected by alcohol and possibly also drugs. She kicked the glass sliding door at the front of the house with sufficient force to crack the glass. She then banged on the front window of the house with both her hands for about a minute. The force of the blows ultimately caused the glass to smash. The appellant fell forwards and through the smashed front window. She pulled herself out of the window frame and then entered the house, bleeding badly from a cut to her left arm. Finney told her to leave. She did so. Repairs to the door and window cost $490. The driving offences occurred in the early hours of the morning of 13 February 2007. At 2.57 am the appellant was driving her car along Caves Road in Siesta Park. A police car travelling in the opposite direction picked her car up on its mobile radar. The radar showed that her car was travelling at a speed of 128 kms per hour. The car was in a 90 km per hour zone. The police activated their emergency lights and pursued the appellant's car. Instead of slowing down, the appellant accelerated to a speed of 140 kms per hour and then to 150 kms per hour. The police turned on their siren. Notwithstanding this, the appellant continued to maintain a speed of between 140 and 150 kms through a 90 km per hour zone and then through a 70 km per hour zone. Some parts of the carriageway upon which she was driving were wet due to nearby reticulation sprinklers. She turned off Caves Road and drove in an easterly direction on Bussell Highway in Broadwater, still at a speed of between 140 and 150 kms per hour. Eventually she slowed and turned right into a gravel entry to her home. She accelerated, while driving on a narrow dirt track, causing her car to slide sideways. The police were still following. The appellant made a sharp right turn, almost lost control of her car, continued on the dirt road and stopped near the front of her house. She stayed in her car.

Ratio Decidendi

Legal Principle Established

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