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
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
[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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AGLC
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.