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
PDF Version

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…

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.

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Details

Case: [1999] WASCA 87
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

In the case of Nguyen v Espinoza & Anor, the respondent sought leave to appeal a decision of the County Court of Victoria. The appeal related to a sentence imposed on the applicant, Nguyen, who was convicted under the Road Traffic Act for driving while his license was suspended, as well as other related matters. The County Court had sentenced Nguyen to 18 months imprisonment, which the applicant deemed to be excessive. The legal issue before the court was whether the applicant had established an arguable case that the sentence was manifestly excessive, thus warranting leave to appeal.

The court examined the principle that leave to appeal would only be granted if there was an arguable case that the sentence imposed was manifestly excessive. It considered the severity of the offence, the sentencing principles outlined in the Justices Act, and the relevant case law. The court concluded that, while the sentence was indeed severe, it was not manifestly excessive given the circumstances and the nature of the offence. The court found that the applicant had not demonstrated that the sentence was so disproportionate as to justify an appeal. Consequently, the court held that there was no arguable case of manifest excessiveness in the sentence imposed.

Given this conclusion, the court decided to refuse the applicant's application for leave to appeal. The court did not find merit in the argument that the sentence was manifestly excessive, and therefore, the applicant's application for leave to appeal was dismissed. The decision of the County Court was upheld, and the sentence imposed on Nguyen remained in place.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.