Moore v Hoddell - [2009] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MOORE -v- HODDELL [2009] WASC 380

CORAM: McKECHNIE J

HEARD: 4 DECEMBER 2009

DELIVERED : 4 DECEMBER 2009

PUBLISHED : 11 DECEMBER 2009

FILE NO/S: SJA 1108 of 2009

BETWEEN: WYLIE JOHN MOORE
Appellant
AND
RESHELLE JOANNE HODDELL
TARYN MCRAE
KYLIE JACQUELINE AINGER
LINDSAY DALE PANKHURST
SHAYNE ANTHONY KNOX
MATTHEW GERARD OWEN POW
STEVEN ALLAN CORDEN
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
Citation  :RO 12521 of 2008, PE 68982 of 2008, RO 2469 of 2009, RO 2471 of 2009, PE 16047 of 2009, PE 14904 of 2009, PE 22572 of 2009 and PE 41429 of 2009

Catchwords:

Road traffic - Sentence - Driving while disqualified - Immediate imprisonment - Whether excessive

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondents : Ms K A T Pedersen

Solicitors:

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

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

Nil

McKECHNIE J:
(This judgment was delivered extemporaneously on 4 December 2009 and has been edited from the transcript.)

On 12 August 2009 the appellant was sentenced for five counts of driving under suspension; one charge of possession of a licence calculated to deceive; one charge of possession of heroin; and two charges of breach of bail. The matter had a history. He had previously appeared before the magistrate in May 2009 on two occasions when she referred him to the Drug Court for assessment. Subsequently, the appellant was assessed as unsuitable for the Drug Court and returned to the magistrate for sentencing.
The magistrate imposed cumulative terms of 3 months' imprisonment for each offence of driving; 1 month concurrent for possession of heroin; 2 months concurrent for breach of bail protective bail conditions; and 2 months concurrent for breach of bail. In respect of possession of a licence calculated to deceive he was fined. In the course of her comments the magistrate made one error of principle and one error of fact. The error of principle was in response to a question about community orders. She said, 'I never give these for these', or words to that effect.
If that was a blanket statement then it was a wrong statement. I do not attribute too much to it, however, because magistrates and judges sometimes say things without necessarily thinking through the consequences. In any event the real question is whether the magistrate's ultimate decision was right. She also, perhaps understandably, thought that the appellant had failed to appear in Court on more occasions than he had but that does not appear to have had much impact on her overall sentencing.
The appellant was convicted of driving while under fines suspension on 20 October 2006. On 11 July 2007 he was convicted of driving under suspension, the driving having occurred on 14 December 2006. On 27 June 2008 he was convicted of driving under suspension, the driving having…

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 Moore v Hoddell

Details

AGLC: Moore v Hoddell [2009] WASC 380
Case: [2009] WASC 380
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

In the case of Moore v Hoddell, the appellant was convicted of driving while disqualified and was sentenced to imprisonment for a period of three months. The appellant, Moore, appealed against the sentence imposed, arguing that it was excessive. The High Court of Australia was tasked with determining whether the sentence was indeed excessive and whether the trial judge erred in imposing it.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, thus constituting an error of law. The court had to consider the principles of sentencing, particularly in relation to road traffic offences, and whether the sentence imposed was disproportionate to the offence committed. The court also needed to evaluate whether the trial judge had properly exercised his discretion in imposing the sentence.

The court held that the sentence imposed was not manifestly excessive. In reaching this decision, the court emphasised the importance of judicial discretion in sentencing and the principle that an appellate court should not interfere with a sentence unless it is plainly wrong or unjust. The court found that the trial judge had considered all relevant factors and had exercised his discretion appropriately. The sentence, while severe, was not disproportionate to the offence of driving while disqualified, especially given the appellant's previous convictions and the need to deter such behaviour. The appeal was accordingly dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of imprisonment for three months was upheld. The appellant remained subject to the sentence imposed by the trial judge.

Orders