Pryor v Loos - [2021] WASC 403

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PRYOR -v- LOOS [2021] WASC 403
CORAM:   CORBOY J
HEARD:   3 NOVEMBER 2021
DELIVERED          :   11 NOVEMBER 2021
PUBLISHED           :   16 NOVEMBER 2021
FILE NO/S:   SJA 1064 of 2021
BETWEEN:   SHELDON PURNELL PRYOR
Appellant
AND
TRISTAN LOOS
Respondent

ON APPEAL FROM:
For File No:   SJA 1064 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY AND MAGISTRATE B MAHON
File Number            :   AR 7343/2020
AR 7947/2020
AR 7948/2020

Catchwords:

Criminal laws - Appeal - Appellant subject to suspended imprisonment order - Appellant breached order - Magistrate ordered appellant to serve part of the suspended sentence and suspended balance of term of imprisonment - No power to make order under s 80 of the Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal on ground 1 of appeal notice granted
Appeal allowed on ground 1
Order made on 27 August 2021 set aside as being null and void
Appellant ordered to serve 4 weeks imprisonment under s 80(1)(b) of the Sentencing Act

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	Aboriginal Legal Service
Respondent	:	State Solicitor's Office

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

Brown v Nation & Ors [2019] WASC 430
Dillon v The State of Western Australia [2020] WASCA 24
Dragon v The State of Western Australia [2008] WASCA 252
Dreja v The State of Western Australia [2012] WASCA 151
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Nannup v The State of Western Australia [No 2] [2021] WASCA 179
Powell v Tickner [2010] WASCA 224
Wallam v Dent [2008] WASC 170

CORBOY J:

On 2 October 2020, the appellant was convicted of two offences pursuant to s 55 of the Criminal Procedure Act 2004 (WA):
(1)on 31 July 2020, he drove a vehicle while under permanent life disqualification, contrary to s 49 of the Road Traffic Act 1974 (WA) (charge AR 7947/2020) (the Driving Offence);
(2)on the same date he refused to provide a sample of his breath for analysis contrary to s 67(2)(a) of the Road Traffic Act (charge AR 7948/2020).
The appellant appeared in the Armadale Magistrates Court on 16 October 2020 for the purposes of sentencing. The facts alleged by the prosecutor were not disputed by the appellant's counsel. The facts as read to the court were:
At 12.01am on Friday, 31 July 2020, the accused drove a Holden Commodore, registration H22735 on Churchdown Street in Thornlie. The accused was stopped by police and it was ascertained he was not authorised to drive that class of motor vehicle. The accused's licence was disqualified permanently on 28 October 1997 for a life disqualification in regards to alcohol offences.
…
When he was stopped, he was required to submit a 'indistinct' breath for analysis,…

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 Pryor v Loos

Details

AGLC: Pryor v Loos [2021] WASC 403
Case: [2021] WASC 403
Decision Date: 16 NOVEMBER 2021

CaseChat Overview and Summary

The matter of Pryor v Loos concerned the appellant who had been subject to a suspended imprisonment order. The appellant subsequently breached the terms of that order. As a consequence, the magistrate ordered the appellant to serve a portion of the suspended sentence and suspended the balance of the imprisonment term. The appellant appealed, arguing that the magistrate lacked the authority to make such an order under section 80 of the Sentencing Act 1995 (WA).

The central legal issue before the court was whether the magistrate had the jurisdiction to order the appellant to serve part of the suspended sentence and suspend the remainder of the imprisonment term. The court examined the relevant statutory provisions and the principles of judicial discretion in sentencing to determine if the magistrate's order was within the bounds of legal authority. Specifically, the court needed to ascertain if the provisions of section 80 of the Sentencing Act 1995 (WA) permitted such an order.

In its reasoning, the court concluded that the magistrate did not possess the power to make the order in question. The court found that the statutory framework did not provide for the suspension of part of a sentence and the enforcement of another part. Instead, the court held that once a sentence was suspended, the entire sentence was either to be carried out or not executed at all. Therefore, the magistrate's order was beyond their legal authority, and the appellant's appeal was upheld. The court quashed the magistrate's order and remitted the matter for reconsideration in light of the court's findings.

Orders