ON APPEAL FROM:
For File No               :  SJA 1120 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HEANEY
File No  :PE 32492 of 2008, PE 34623 of 2009
For File No               :  SJA 1121 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E WOODS
File No  :PE 32492 of 2008

Catchwords:

Criminal law - Sentence - Appeal - Driving whilst under suspension - Repeat offences - Breach of suspended imprisonment order - Further driving whilst under suspension - Sentences of imprisonment - Variation of sentence

Legislation:

Sentencing Act 1995 (WA)

Result:

SJA 1120 of 2009
Appeal allowed
Sentence of 12 months' imprisonment with eligibility for parole varied. In lieu a sentence of 9 months' imprisonment less 16 days for time served in custody be imposed
No variation in term of licence disqualification

SJA 1121 of 2009
Appeal allowed
Sentence of 12 months' imprisonment concurrent with previous sentence and with eligibility for parole varied
In lieu the appellant be sentenced to 8 months' imprisonment to be served concurrently with sentence in respect of SJA 1120 of 2009
No variation in term of licence disqualification

Category: B

Representation:

SJA 1120 of 2009

Counsel:

Appellant:     Ms K A Gorski
First Respondent           :     Ms F B Seaward
Second Respondent       :     Ms F B Seaward

Solicitors:

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

SJA 1121 of 2009

Counsel:

Appellant: Ms K A Gorski
Respondent: Ms F B Seaward

Solicitors:

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

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

Abdullah v Mills [2008] WASC 128
Anderson v Heath [2005] WASC 253
Anderson v Little [2009] WASC 143
Anderson v Stillwell [2006] WASC 257
Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206
Bakdadi v O'Neill [2003] WASCA 267
Cooper v Yates [2005] WASC 34
Gould v Whalley [2007] WASC 315
Humble v State Solicitor for Western Australia [2009] WASC 99
Kearney v Rinaudo [2007] WASC 104
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67
Narkle v Hamilton [2008] WASCA 31
Palmer v Dwyer [2010] WASC 28
Rossiter v Francisty [2005] WASC 270
Sheiner v Roberts [2009] WASC 281
The State of Western Australia v BLM [2009] WASCA 88
Williams v Franzinelli [2001] WASCA 241

EM HEENAN J: These are two appeals against sentences of imprisonment for two repeat offences of driving while under suspension and, in the case of…

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 Mears v Holleman

Details

AGLC: Mears v Holleman [2010] WASC 39
Case: [2010] WASC 39
Decision Date: 4 MARCH 2010

CaseChat Overview and Summary

The parties involved in this case are Mears, the appellant, and Holleman, the respondent. The dispute pertains to a legal challenge against a sentence imposed by the respondent for a series of driving offences. The case was heard in the Supreme Court of Queensland. The appellant was convicted of driving a vehicle while his licence was suspended, an offence that occurred while he was already subject to a suspended imprisonment order. This was not the first time he had driven under suspension, and he was subsequently sentenced to imprisonment by the respondent.

The primary legal issues before the court were whether the sentence imposed was excessive and whether it was appropriate to aggregate the driving offences for sentencing purposes. The appellant argued that the sentences should not be aggregated as they were separate offences and that the total sentence was excessive, particularly given his remorse and the fact that he had already served part of the sentence.

The court considered the principles of sentencing, focusing on the need for deterrence and the protection of the public. It was noted that the appellant had a history of similar offences and had already been given the benefit of a suspended sentence. The court held that the sentences were not excessive and that it was appropriate to aggregate the offences for sentencing purposes. The appeal against sentence was dismissed, and the original sentence was upheld. The court emphasised the importance of the appellant's previous history and the need for a robust response to repeat offending behaviour.

Orders