JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MOORE -v- RUSSELL [2020] WASC 413
CORAM: TOTTLE J
HEARD: 20 AUGUST 2020
DELIVERED : 17 NOVEMBER 2020
FILE NO/S: SJA 1151 of 2019
BETWEEN: RICHARD STEPHEN MOORE
Appellant
AND
SHANE LAURENCE RUSSELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T HALL
File Number : AR 13533 of 2018
Catchwords:
Criminal law - Appeal against conviction - Dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) - Where errors in fact finding alleged - Appellate review of factual findings - No appellable error - Appeal dismissed
Criminal law - Appeal against sentence for first offence of dangerous driving by police officer - Whether sentence was manifestly excessive - Whether personal deterrence a relevant factor - Appeal allowed - Appellant resentenced
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code (WA)
Road Traffic Act 1974 (WA), s 61, s 61A
Result:
Leave to appeal on grounds 1, 2, 3, 4 and 5 refused
Leave to appeal on ground 6 granted
Appeal against sentence allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | L B Black |
| Respondent | : | P A Femia |
Solicitors:
| Appellant | : | Tindall Gask Bentley Lawyers |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Boult v Williams [2019] WASC 98
City of Armadale v Neerigen Brook Estate Pty Ltd [2020] WASC 137
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489
House v The King [1936] HCA 40; (1936) 55 CLR 499
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Nguyen v The State of Western Australia [2019] WASCA 56
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TOTTLE J:
On 28 October 2019 the appellant was convicted of one charge of dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) (RTA). The magistrate imposed a fine of $2,500, ordered the appellant to pay costs and made a spent conviction order. The appellant seeks leave to appeal against the conviction and the imposition of the fine.
The facts
The critical facts may be summarised as follows. The appellant is a police officer. On the afternoon of 6 May 2018 he was on official duty. Together with Senior Sergeant Heather Osborne, the appellant was attempting to arrest a person (Mr Farmer) who had been reported as having acted suspiciously in the suburb of Thornlie. The appellant and Senior Sergeant Osborne saw Mr Farmer in Wilfred Road, Thornlie. They got out of…
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- AGLC
- Moore v Russell [2020] WASC 413
- Case
- [2020] WASC 413
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the magistrate made any factual errors that amounted to an error of law and whether the sentence imposed was manifestly excessive. The court examined the evidence presented and the magistrate's findings to determine if there was any error in the decision-making process. The court also considered whether the sentence was appropriate for a first-time offender.
The court found that the magistrate did not make any factual errors that resulted in an erroneous application of the law. The magistrate's findings were supported by the evidence, and the court held that there was no appellable error. Regarding the sentence, the court concluded that it was manifestly excessive for a first offence of dangerous driving and allowed the appeal. The appellant was resentenced by the court.
The court dismissed the appeal against the conviction but allowed the appeal against the sentence. The appellant was resentenced by the Court of Appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mitchell JA also observed that even where the appeal concerns inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. His Honour referred to the observations of Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:[28] [T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 ‑ 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. Ground 1 states the magistrate made a series of factual errors that, when considered in combination, resulted in the magistrate making an error of law by applying the law to the flawed factual findings. The ground relies on nine particulars. There was evidence that the 'instruments of home burglary' were in Mr Farmer's backpack but the magistrate made no finding about the contents of the backpack. It was unnecessary for him to do so. Senior Sergeant Osborne's evidence was that Mr Farmer took his backpack off and threw it to the ground as she was following him towards the roundabout, that is, before Senior Sergeant Osborne and the appellant managed to catch him and put a handcuff on his left wrist.[29] Mr Farmer did not have the backpack on him when the appellant decided to use his vehicle to block Mr Farmer's path. The appellant gave no evidence about what he thought may have been in the backpack. The particular raises a false issue. This particular does not advance the appellant's case for two reasons. First, and most fundamentally, the particular is irrelevant to the magistrate's reasoning as he found that prior to the alleged dangerous driving the appellant was not aware of any attempt to steal a vehicle or 'carjack' a vehicle (and indeed found that there was no such attempt). The alleged carjackings - like the contents of the discarded backpack ‑ were thus not matters capable of operating on the appellant's mind at the time of the alleged dangerous driving. They did not form part of the circumstances to which regard must be had for the purposes of determining whether the driving was dangerous. By way of further exposition - the appellant did not give evidence about Mr Farmer's attempt to get into the Quartermaine car - it appears he did not see this take place. Rather, he gave evidence about two separate incidents that caused him to suspect that Mr Farmer may have been trying to get into cars. As to the first incident the appellant gave evidence that he saw Mr Farmer standing by the driver's door of a car that had stopped. He was concerned that Mr Farmer had stopped the car and was going to get into it.[30] This was after the appellant had fallen over and returned to his vehicle but before Mr Farmer reached the roundabout and before he attempted to get into the Quartermaine car. According to the appellant's evidence, the second incident occurred after Mr Farmer had broken free and walked away with the handcuff on his wrist. The appellant said he saw Mr Farmer standing at a rear open door of a car and was concerned that he might be trying to carjack the vehicle.[31] The magistrate rejected the appellant's evidence in respect of both incidents and gave detailed reasons for doing so.[32] In his Honour's view, a powerful reason for rejecting the appellant's evidence was that Senior Sergeant Osborne, who was following closely behind Mr Farmer, and in a better position to observe Mr Farmer than the appellant, gave no evidence of such attempts at carjacking. The magistrate's reasons for rejecting the appellant's evidence are unimpeachable. The appellant did not demonstrate any error in his Honour's approach to making findings as to these facts.[30] ts, 29 August 2019, 182.[31] ts, 29 August 2019, 190.[32] ts, 28 October 2019, 28 and 31.