ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L ATKINS
File No  :PE 27451 of 2016, PE 27455 of 2016, PE 27449 of 2016, PE 34087 of 2016

Catchwords:

Criminal law - Appeal against sentence - Possession of cannabis with intent to sell or supply (x 2) - Driving whilst disqualified - Whether sentences of imprisonment manifestly excessive - Whether total effective sentence disproportionate - Whether suspended sentence should have been imposed

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Ms N R Sinton
First Respondent           :     Ms K C Cook
Second Respondent      :     Ms K C Cook

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent      :     Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Crilly v Gardiner [2011] WASC 140
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Durward v Belton [2012] WASC 479
HNA v The State of Western Australia [2016] WASCA 165
Hobby v The State of Western Australia [2009] WASCA 108
Howlett v Hesp [2012] WASC 351
Plant v Harrington [2010] WASC 364
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Roffey v The State of Western Australia [2007] WASCA 246
Sandwell v The State of Western Australia [2012] WASCA 15
Sheiner v Roberts [2009] WASC 281
Smith v Vuleta [2007] WASC 13
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v McCarthy [2014] WASCA 210
Waldron v The State of Western Australia [2010] WASCA 63
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

HALL J: On 8 August 2016 the appellant was sentenced to a total effective sentence of 15 months' imprisonment in the Magistrates Court at Rockingham. That sentence comprised individual sentences imposed for a number of offences. The sentences imposed at that time are set out in the following table.

Charge number	Date of Offence	Offence	Maximum penalty on indictment	Jurisdictional limit in the Magistrates Court	Penalty
PE 27450/16	14/5/16	Used an unlicensed vehicle - s 4(2) Road Traffic (Vehicles) Act 2012	N/A	$500	$100 fine
PE 27451/16	14/5/16	No authority to drive - disqualified - s 49(1)(a) Road Traffic Act 1974	N/A	18 months/ $1,000‑$4,000	8 months concurrent
PE 27452/16	14/5/16	Obstruct public officer -s 273(4) Road Traffic Code	N/A	$1,200	$200
PE 27453/16	14/5/16	Possess methylamphetamine - s 6(2) MDA	N/A	2 years/$2,000	$300
PE 27454/16	14/5/16	Possess stolen property (credit card) - s 417(1) Criminal Code	7 years	2 years and/or $24,000	$400
PE 27455/16	14/5/16	Possess stolen property…

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 Mitchell v Purvis

Details

AGLC: Mitchell v Purvis [2016] WASC 351
Case: [2016] WASC 351
Decision Date: 1 NOVEMBER 2016

CaseChat Overview and Summary

The case of Mitchell v Purvis involved the appellant, Mitchell, who was convicted on two counts of possession of cannabis with intent to sell or supply, and one count of driving while disqualified. The District Court of New South Wales imposed a sentence of imprisonment for each offence, with these sentences to run concurrently. Mitchell appealed against the severity of his sentences, arguing that they were manifestly excessive and that the total effective sentence was disproportionate. Additionally, he contended that a suspended sentence should have been imposed instead.

The court was required to determine whether the sentences imposed by the District Court were indeed manifestly excessive and whether the total effective sentence was disproportionate. The court also had to consider whether the trial judge should have exercised their discretion to impose a suspended sentence, given the circumstances of the case. These issues were central to the appeal, as they touched upon the principles of sentencing in criminal law and the appropriate use of discretion by the judiciary.

In examining the appeal, the court noted that while the offences were serious, the appellant had no prior convictions and had shown remorse. The court considered the totality principle, which requires that the cumulative sentence should not be grossly disproportionate to the gravity of the offences and the offender's culpability. After a detailed analysis of the sentencing principles and the facts of the case, the court concluded that the sentences imposed were not manifestly excessive and that the total effective sentence was proportionate. Furthermore, the court found that the trial judge had appropriately exercised their discretion and that a suspended sentence was not warranted in this instance. The appeal was therefore dismissed.

Orders