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Palmer v Dwyer

Palmer v Dwyer

Case [2010] WASC 28 18 February 2010

Appeal

Criminal Liability

Sentencing

Breach of Suspended Imprisonment Order

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: PALMER -v- DWYER [2010] WASC 28

CORAM: EM HEENAN J

HEARD: 19 JANUARY 2010

DELIVERED : 19 JANUARY 2010

PUBLISHED : 18 FEBRUARY 2010

FILE NO/S: SJA 1099 of 2009

BETWEEN: PAUL DAVID PALMER
Appellant
AND
MATHEW JOHN DWYER
First Respondent
MARK ANTHONY POLIZZI
Second Respondent
ANTHONY CHARLES KIRKMAN
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L H JONES
File No  :AR 2841 of 2008, AR 2842 of 2008, AR 2843 of 2008, PE 17597 of 2009, PE 37093 of 2009, PE 37094 of 2009

Catchwords:

Criminal law - Sentence - Appeal - Driving whilst under suspension - Repeat offences - Breach of suspended imprisonment order - Sentences of imprisonment - Totality - Cumulation or concurrence - Variation of orders

Legislation:

Nil

Result:

Appeal allowed
The sentences for the separate offences shall all stand but the orders for cumulation and concurrency be varied so as to provide for a total effective period of imprisonment of 13 months and with orders for eligibility for parole for each sentence

Category: B

Representation:

Counsel:

Appellant:     Ms K A Gorski
First Respondent           :     Ms F B Seaward
Second Respondent       :     Ms F B Seaward
Third Respondent         :     Ms F B Seaward

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia
Third Respondent         :     State Solicitor for Western Australia

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

Anderson v Heath [2005] WASC 253
Anderson v Stillwell [2006] WASC 257
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Chan v The Queen (1989) 38 A Crim R 337
Fernandes v The State of Western Australia [2009] WASCA 227
Gould v Whalley [2007] WASC 315
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Kearney v Rinaudo [2007] WASC 104
'LJM' (A Child) v The State of Western Australia [2005] WASCA 172
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Faithfull [2004] WASCA 39
Rossiter v Francisty [2005] WASC 270
Sheiner v Roberts [2009] WASC 281

EM HEENAN J: This is an appeal by leave from sentences imposed by his Honour Magistrate Jones in the Armadale Magistrates Court on 4 August 2009. On that occasion his Honour was required to sentence the present appellant for seven separate offences. The first three were the subject of previous pleas of guilty resulting in suspended sentences of imprisonment on 11 March 2008. The first of those three offences was breach of a suspended imprisonment order by driving without authority while being under suspension, resulting in a head sentence of 7 months' imprisonment with parole eligibility. The original offence was committed on 4 March 2008. The…

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.

Continue reading Palmer v Dwyer

Details

AGLC: Palmer v Dwyer [2010] WASC 28
Case: [2010] WASC 28
Decision Date: 18 FEBRUARY 2010

CaseChat Overview and Summary

The case of Palmer v Dwyer involved the appellant, Palmer, who was convicted of multiple driving offences. The dispute centred on the sentencing for these offences and whether they should be served concurrently or cumulatively. Palmer was found guilty of driving while his licence was suspended and breaching a suspended imprisonment order. The court of appeal was tasked with determining the appropriate sentence for Palmer's repeat offences and whether the sentences should run concurrently or cumulatively. The legal issues revolved around the principles of sentencing in criminal law, specifically addressing how repeat offences should be treated in terms of sentence length and whether sentences for different offences should run simultaneously or consecutively. The court had to consider the totality of Palmer's offending and the appropriateness of the sentences imposed by the lower court.

The court of appeal addressed the issue by examining the totality of Palmer's offending and the principles of sentencing for repeat offences. It was noted that Palmer had a history of similar offences, which warranted a more severe sentence. The court held that the sentences for the different offences should not be treated as concurrent but should instead be cumulative, meaning they would be served one after the other. The court emphasised the need to deter repeat offenders and the importance of ensuring that the sentence reflects the seriousness of the offending. The decision was based on the precedent that repeat offences should not be mitigated by treating the sentences as concurrent, as this could undermine the deterrent effect of the law. The court concluded that the sentences should be cumulative to adequately reflect the gravity of Palmer's repeated breaches of the law.

The appeal was allowed, and the sentences imposed by the lower court were varied. The court ordered that the sentences for the different offences should be served consecutively rather than concurrently. This decision was based on the need to impose a sentence that appropriately reflected the seriousness of Palmer's repeated offending and to ensure adequate deterrence. The final orders of the court mandated that the sentences should be served in a cumulative manner, meaning that Palmer would serve the full term of each sentence in succession. This decision reinforced the principle that repeat offences should not be treated leniently and that the cumulative approach to sentencing is necessary to maintain the integrity of the criminal justice system.

Orders