Ninyette v Holmes

Case [2015] WASC 287


NINYETTE -v- HOLMES [2015] WASC 287



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASC 287
Case No:SJA:1038/201531 JULY 2015
Coram:MITCHELL J7/08/15
19Judgment Part:1 of 1
Result: Appeal allowed
Appellant resentenced
B
PDF Version
Parties:GEOFFREY NINYETTE
STEPHEN HOLMES
TERRENCE RUSSELL KUSER

Catchwords:

Criminal law
Appeal against sentence
Reckless driving
Escaping police pursuit
Whether sentence manifestly excessive
Whether first limb of the totality principle infringed
Consequences of failure to state extent of reduction for plea of guilty

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 14(2), s 31(4)(a)
Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1), s 60(4)
Sentencing Act 1995 (WA), s 9AA

Case References:

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Burrows v the State of Western Australia [2014] WASCA 147
GOK v The Queen [2010] WASCA 185
House v The King (1936) 55 CLR 499
Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kuhnert v Fyneman [2015] WASC 257
McDougall v The State of Western Australia [2009] WASCA 232
Neumann v The State of Western Australia [2013] WASCA 70
Postiglione v The Queen (1997) 189 CLR 295
Roberts v The State of Western Australia [2014] WASCA 239
Tela v The State of Western Australia [No 2] [2014] WASCA 103
WS v Gardin [2015] WASC 97


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NINYETTE -v- HOLMES [2015] WASC 287 CORAM : MITCHELL J HEARD : 31 JULY 2015 DELIVERED : 7 AUGUST 2015 FILE NO/S : SJA 1038 of 2015 BETWEEN : GEOFFREY NINYETTE
    Appellant

    AND

    STEPHEN HOLMES
    TERRENCE RUSSELL KUSER
    Respondents


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M RIDLEY

File No : JO 10917 - 10919 of 2014, PE 14387 - 14392 of 2015, PE 71409 - 71411 of 2014, PE 13370 - 13372 of 2015


Catchwords:

Criminal law - Appeal against sentence - Reckless driving - Escaping police pursuit - Whether sentence manifestly excessive - Whether first limb of the totality principle infringed - Consequences of failure to state extent of reduction for plea of guilty

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 14(2), s 31(4)(a)


Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1), s 60(4)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed


Appellant resentenced

Category: B


Representation:

Counsel:


    Appellant : Mr D D Brunello
    Respondents : Ms S E Wisbey

Solicitors:

    Appellant : Aboriginal Legal Service (WA)
    Respondents : Director of Public Prosecutions (WA)



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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Burrows v the State of Western Australia [2014] WASCA 147
GOK v The Queen…

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Ninyette v Holmes [2015] WASC 287
Case
[2015] WASC 287
Decision Date

CaseChat Overview and Summary

The appellant, Ninyette, appealed against the sentence imposed by the Magistrates' Court for reckless driving and escaping police pursuit. The court was required to determine whether the sentence was manifestly excessive and whether it violated the first limb of the totality principle. The appellant argued that the sentence was manifestly excessive, and that the court had not adequately considered the reduction for the plea of guilty. The court was also required to determine whether the failure to state the extent of the reduction for the plea of guilty infringed the first limb of the totality principle.

The court found that the sentence was manifestly excessive and that the appellant's argument regarding the first limb of the totality principle had merit. The court noted that the failure to state the extent of the reduction for the plea of guilty meant that the court had not properly considered the impact of the plea of guilty on the sentence. The court held that this failure to state the extent of the reduction for the plea of guilty infringed the first limb of the totality principle. The court found that the sentence was manifestly excessive and that the appeal should be allowed. The appellant was resentenced.

Orders

Orders of the court

Appeal allowed

Appellant resentenced

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

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