Nguyen v Espinoza & Anor

[1999] WASCA 87

NGUYEN -v- ESPINOZA & ANOR [1999] WASCA 87

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 87
Published:	25/06/1999
Case No:	SJA:1097/1999	Heard:	14 JUNE 1999
Coram:	McKECHNIE J	Delivered:	14/06/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Leave to appeal refused
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Parties:	THANH SANG NGUYEN MARY ESPINOZA MATHEW DAVID HOLLAND
Catchwords:	Justices Act Leave to appeal Road Traffic Act Sentence of 18 months for driving under suspension and other matters No arguable case
Legislation:	Justices Act (WA) 1906 Road Traffic Act (WA) 1974
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NGUYEN -v- ESPINOZA & ANOR [1999] WASCA 87 CORAM : McKECHNIE J HEARD : 14 JUNE 1999 DELIVERED : 14 JUNE 1999 PUBLISHED : 25 JUNE 1999 FILE NO/S : SJA 1097 of 1999 BETWEEN : THANH SANG NGUYEN

Applicant

AND

MARY ESPINOZA
MATHEW DAVID HOLLAND
Respondents

Catchwords:

Justices Act - Leave to appeal - Road Traffic Act - Sentence of 18 months for driving under suspension and other matters - No arguable case

Legislation:

Justices Act(WA) 1906

Road Traffic Act (WA) 1974

Result:

Leave to appeal refused

(Page 2)

Representation:

Counsel:

Applicant : In person
Respondents : Mr R Ioppolo

Solicitors:

Applicant : In person
Respondents : State Crown Solicitor

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

Case(s) also cited:

Nil

(Page 3)

1 McKECHNIE J: This is an application for leave to appeal against sentence on the grounds that the sentence was too severe and, as the applicant puts in his affidavit:

"2. I believe the decision made by the learned Magistrate was manifestly severe given that

(a) he failed to take into account personal circumstances and

(b) he did not give my solicitor the opportunity to present background information regarding my life."

2 I am required to grant leave unless the grounds do not disclose an arguable case. I have considered the papers and in particular the transcript of the hearing before the Chief Stipendiary Magistrate on 11 March 1999.

3 On that date the applicant pleaded guilty to five offences and was sentenced as follows: False name, three months; possession of a knife, four months; driving under suspension, 18 months; dangerous driving, three months; unlawfully on curtilage, six months. These offences all occurred on 26 January 1999. The applicant was on parole at the time, having been released on Christmas Day 1998, so only a month had passed before these offences were committed.

4 The sentences were all made concurrent each with the other. While on remand on 20 February 1999 he approached a group of buskers. Although the applicant has given a different version, today he accepts that he did assault one of them and pleaded guilty to that. He received six months which was also made concurrent with the other sentences, no doubt because of the totality principle. The event was quite different. The learned Chief Stipendiary Magistrate made a parole eligibility order.

5 The driving under suspension was the eighth offence of its kind. The respondent has been represented this morning and has put the applicant's record to me. It is noted that it is a very extensive record. Although I disregard the Children's Court convictions, it is nevertheless still excessive. In respect of driving, however, there are two reckless driving charges, two dangerous driving charges and, as I have said, eight charges of driving under suspension.

6 The applicant tells me that the penny is beginning to drop and he has started to learn that he is not getting anywhere by continuing to commit

(Page 4)

offences. I hope this is so and I hope that he will change because in the end it is neither to his nor society's good if he continues with his antisocial behaviour. However, these offences were committed shortly after he was released to serve part of his sentence in the community on parole. They disclose, in my view, a wilful disregard of the traffic laws and of the privilege of being granted a motor vehicle driver's licence.

7 Generally, repeated acts of driving under suspension attract imprisonment. The applicant has been previously imprisoned for it. Eighteen months is the maximum sentence to be imposed and is usually reserved for the worst type of cases, although that principle has some modification where the statutory maximum is comparatively low. In my opinion, an eighth offence of driving under suspension in the circumstances of this case falls within a category of the worst case of its type.

8 Having regard to the overall sentencing disposition; the fact that all the sentences were made concurrent; that there was an order for parole eligibility, I am unpersuaded the sentence of 18 months' imprisonment with parole was too severe and do not consider there is an arguable case that an appeal would be successful. Therefore I refuse the application for leave to appeal.