PAYNE -v- AULT [2013] WASC 65

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 65
Case No:	SJA:1144/2012	Heard:	14 FEBRUARY 2013
Coram:	HALL J	Delivered:	5/03/13
No of pages:	14	Judgment 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)
Category:	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

(Page 2)

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 -…

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 Payne v Ault

Details

AGLC: Payne v Ault [2013] WASC 65
Case: [2013] WASC 65
Decision Date

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.

Orders