Parkinson v Prout - [2003] WASCA 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PARKINSON -v- PROUT [2003] WASCA 320

CORAM: HASLUCK J

HEARD: 11 DECEMBER 2003

DELIVERED : 11 DECEMBER 2003

FILE NO/S: SJA 1094 of 2003

MATTER :Justices Act 1902

BETWEEN: ROBERT JAMES PARKINSON
Appellant
AND
CHAD ANTHONY PROUT
Respondent

Catchwords:

Criminal law - Justices Act - Sentencing - Sentencing in response to endorsed plea of guilty - Offence of dealing in motor vehicles while not being licensed - Appellant sentenced in his absence - Whether sufficient weight given to mitigating factors - Circumstances in which daily penalty can be imposed - Sentence imposing substantial fine with daily penalty in respect of entire period specified in the complaint - Fine held to be excessive - Sentence quashed and matter remitted to learned Magistrate

Legislation:

Interpretation Act 1994, s 71(2), s 71(4)

Justices Act 1902, s 43, s 184, s 196, s 199
Motor Vehicle Dealers (Amendment) Act 2002, s 5, s 26, s 30(1), s 31

Sentencing Act 1995, s 6(1), s 8(2), s 9(7),s 14, s 15, s 16(1), s 53, Pt III

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S I Gallacher
Respondent: Mr S M Simpson

Solicitors:

Appellant: Dwyer Durack
Respondent: Department of Consumer & Employment Protection

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

Danielle v Shire of Swan, unreported; SCt of WA; Library No 960513; 13 September 1996
Garrett v Nicholson (1999) 21 WAR 226
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
R v Tait (1979) 46 FLR 386
Radebe v The Queen (2001) 162 FLR 313
Rowlands v Capehorn [2001] WASCA 66
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
White v Taylor [1999] WASCA 104

Case(s) also cited:

Bates v Wheatley [2000] WASCA 38
Danielle v Shire of Swan, unreported; SCt of WA; Library No 960513; 13 September 1996
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Jag Demolition Pty Ltd v Graham David Partridge [2002] WASCA 272
Kwa v City of Stirling, unreported; SCt of WA; Library No 990043; 11 February 1999
R v Heferen 106 A Crim R 89
R v Rostom [1996] 2 VR 97
Tagliaferri v De Villiers, unreported; SCt of WA; Library No 9950493; 15 September 1995

HASLUCK J:

Introduction

This is an appeal from the Court of Petty Sessions at Perth pursuant to provisions of the Justices Act1902. The appellant, Robert James Parkinson, was charged by summons pursuant to complaint No PE 36373/03 in the Perth Court of Petty Sessions. The complaint alleged that between 31 August 2002 and 16 July 2003 the appellant engaged in unlicensed dealing contrary to s 30(1) of the Motor Vehicle Dealers Act 1973.
I note in passing that as at 31 August 2002, being the first day of the period nominated in the complaint, s 30(1) of the Motor Vehicle Dealers Act provided that a person who is not the holder of…

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 Parkinson v Prout

Details

AGLC: Parkinson v Prout [2003] WASCA 320
Case: [2003] WASCA 320
Decision Date: 11 DECEMBER 2003

CaseChat Overview and Summary

The case of Parkinson v Prout involved an appeal against the sentencing of the appellant, who had pleaded guilty to an offence under the Justices Act for dealing in motor vehicles while not being licensed. The appellant was sentenced in his absence, and the appeal centred on whether the learned Magistrate had given sufficient weight to the mitigating factors and whether the imposed sentence was appropriate. The matter was heard in the Court of Appeal.

The primary legal issue was whether the Magistrate had considered all relevant mitigating factors and imposed a just and appropriate sentence. The appellant argued that the fine imposed was excessive and that the daily penalty should not have been applied for the entire period specified in the complaint. The respondent, the Crown, contended that the sentence was appropriate given the gravity of the offence and the need for deterrence.

The Court of Appeal found that the Magistrate had not adequately considered all mitigating factors and that the fine imposed was excessive. The court held that the fine, combined with the daily penalty, was disproportionate to the offence and the appellant's circumstances. Consequently, the sentence was quashed, and the matter was remitted to the learned Magistrate for reconsideration. The Court emphasised the importance of taking into account all mitigating factors and ensuring that sentences are proportionate and just.

Orders