Payne v Ault

Case [2013] WASC 65


PAYNE -v- AULT [2013] WASC 65



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 65
Case No:SJA:1144/201214 FEBRUARY 2013
Coram:HALL J5/03/13
14Judgment Part:1 of 1
Result: SJA  1148 of 2012:
1.  Leave to appeal granted
2.  Appeal against conviction allowed to the extent of deleting reference to the circumstance of aggravation
SJA 1144 of 2012:
1.  Leave to appeal granted
2.  Appeal against sentence allowed
3.  The sentences imposed by the magistrate be set aside and in lieu thereof the appellant be sentenced as follows:
    (a)  charge 8627/12 - 12 months' imprisonment suspended for 12 months; disqualification for 18 months;
    (b)  charge 8628/12 - 8 months' imprisonment suspended for 12 months; disqualification for 9 months cumulative;
    (c)  charges 8629/12 and 8630/12 - penalties imposed by the magistrate (except to remove reference to the disqualification on charge 8630/12 being concurrent) (the total period of disqualification being 36 months)
B
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Parties:JEMMA MARIE PAYNE
TREVOR JOHN AULT

Catchwords:

Criminal law
Appeal against conviction and sentence for dangerous driving causing bodily harm
Whether offence committed in circumstances of aggravation
Whether charge materially defective
Whether erroneous allegation of circumstances of aggravation had impact on sentence

Legislation:

Road Traffic Act 1974 (WA), s 59A, s 59B

Case References:

Borsa v The Queen [2003] WASCA 254
Caporn v The State of Western Australia [No 2] [2008] WASCA 26
Forkin v The State of Western Australia [2013] WASCA 51
Hogue v The State of Western Australia [2005] WASCA 102
Mathews v Whalley [2010] WASC 165


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CRIMINAL
CITATION : PAYNE -v- AULT [2013] WASC 65 CORAM : HALL J HEARD : 14 FEBRUARY 2013 DELIVERED : 5 MARCH 2013 FILE NO/S : SJA 1144 of 2012
    SJA 1148 of 2012
BETWEEN : JEMMA MARIE PAYNE
    Appellant

    AND

    TREVOR JOHN AULT
    Respondent


ON APPEAL FROM:

For File No : SJA 1144 of 2012

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : JO 8627 of 2012, JO 8628 of 2012, JO 8630 of 2012

For File No : SJA 1148 of 2012

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : JO 8627 of 2012



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Catchwords:

Criminal law - Appeal against conviction and sentence for dangerous driving causing bodily harm - Whether offence committed in circumstances of aggravation - Whether charge materially defective - Whether erroneous allegation of circumstances of aggravation had impact on sentence

Legislation:

Road Traffic Act 1974 (WA), s 59A, s 59B

Result:

SJA 1148 of 2012:


1. Leave to appeal granted
2. Appeal against conviction allowed to the extent of deleting reference to the circumstance of aggravation

SJA 1144 of 2012:
1. Leave to appeal granted
2. Appeal against sentence allowed
3. The sentences imposed by the magistrate be set aside and in lieu thereof the appellant be sentenced as follows:
(a) charge 8627/12 -…

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Payne v Ault [2013] WASC 65
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[2013] WASC 65
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CaseChat Overview and Summary

Jemma Marie Payne appealed against her conviction and sentence for dangerous driving causing bodily harm and related charges. The court found that the charge of dangerous driving causing bodily harm in circumstances of aggravation was materially defective because it included an allegation that was arguably irrelevant and not supported by the admitted facts. The plea of guilty could not cure the defect in the charge. The appeal against conviction was allowed to the extent of deleting any reference to circumstances of aggravation within the meaning of s 59B(3). The appeal against sentence was also allowed, and the appellant was resentenced with suspended sentences and reduced periods of disqualification. The court took into account changes in the appellant's personal circumstances since the time of her conviction, including her recent miscarriage and pregnancy. The court concluded that suspended sentences would sufficiently reflect the seriousness of the offence and act as both a personal and general deterrent.

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