McShane v Greig - [2009] WASC 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MCSHANE -v- GREIG [2009] WASC 310

CORAM: HALL J

HEARD: 13 OCTOBER 2009

DELIVERED : 13 OCTOBER 2009

PUBLISHED : 20 OCTOBER 2009

FILE NO/S: SJA 1088 of 2009

BETWEEN: GEORGE WILLIAM MCSHANE
Appellant
AND
LIAM PATRICK GREIG
First Respondent
MITCHELL MARK DERRICK
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D R V TEMBY
Citation  :RO 11873 of 2008, PE 36373 of 2009, PE 36376 of 2009

Catchwords:

Criminal law - Appeal against sentence - Driving under suspension - Suspended sentence activation - Whether total sentence excessive

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Ms R Young
Second Respondent       :     Ms R Young

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

Nil

HALL J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)

On 22 January 2009, Mr McShane appeared in the Magistrates Court at Rockingham and was sentenced for an offence of driving whilst under suspension contrary to s 49(1)(c)(ii) of the Road Traffic Act 1974 (WA). The offence was his sixth of that type. The sentence was one of 9 months' imprisonment suspended for a period of 12 months.
On 3 June 2009 and again on 5 June 2009, Mr McShane committed further offences of driving under suspension. He also committed other offences at around the same time that are not the subject of this appeal. He pleaded guilty to all charges on 10 June 2009 and was sentenced on 8 July.
The further offences were in breach of the suspended sentence of 22 January 2009. On 8 July Mr McShane was sentenced as follows:
1.for the driving under suspension of 3 June - 12 months' imprisonment eligible for parole and 12 months' licence disqualification cumulative;
2.for the driving under suspension on 5 June 2009 - 3 months' imprisonment cumulative with parole eligibility with a further 12 months' licence disqualification cumulative; and
3.for breaching the suspended sentence of 22 January - 12 months' imprisonment cumulative with parole eligibility.
The total sentence was therefore one of 2 years, 3 months, or 27 months.

Grounds of appeal

Mr McShane has appealed against the sentences imposed. The grounds are as follows:
1.the learned magistrate erred in fact and law when imposing imprisonment for breach of a suspended sentence by imposing 12 months' imprisonment when the period of imprisonment specified in the suspended sentence was 9 months' imprisonment;
2.the learned magistrate erred in law by imposing sentences which individually and in aggregate were manifestly excessive in light of the circumstances of the offences, the personal circumstances of the appellant and sentencing standards in similar cases; and
3.the learned magistrate erred in law by imposing sentences of the length imposed and making those sentences cumulative…

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 McShane v Greig

Details

AGLC: McShane v Greig [2009] WASC 310
Case: [2009] WASC 310
Decision Date: 20 OCTOBER 2009

CaseChat Overview and Summary

The appellant, McShane, appealed against the decision of the Supreme Court of Queensland to activate a suspended sentence following his conviction for driving under suspension. The original sentence, handed down in the Magistrates Court, had been suspended, but was activated by the Supreme Court after the appellant re-offended. The appellant argued that the total sentence was excessive, considering his previous non-violent criminal record and the fact that the reoffending was a minor incident. The Queensland Court of Appeal was tasked with determining whether the Supreme Court's decision to activate the suspended sentence was legally sound and whether the total sentence imposed was excessive.

The central legal issue before the court was whether the Supreme Court was correct in its decision to activate the suspended sentence and impose a total sentence on the appellant. The court also had to consider whether the total sentence was excessive, taking into account the appellant's previous non-violent criminal record and the nature of the reoffending. The court had to balance the need to deter reoffending with the principles of proportionality and fairness in sentencing.

The court found that the Supreme Court was correct in activating the suspended sentence, as the appellant had reoffended while the original sentence was still suspended. The court also found that the total sentence imposed was not excessive, taking into account the appellant's previous criminal record and the nature of the reoffending. The court emphasised the importance of deterrence and the need to protect the community from the appellant's reoffending. The court also noted that the appellant had shown some remorse for his actions and had complied with the conditions of his bail. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the original sentence of the Supreme Court stands. The appellant is required to serve the total sentence imposed, which includes the activation of the suspended sentence. The court also noted that the appellant's previous good character and the nature of the reoffending were considered in the sentencing process.

Orders