R v John Warren Westaway - [2015] NSWDC 97

District Court

New South Wales

Medium Neutral Citation: R v John Warren Westaway [2015] NSWDC 97
Hearing dates: 16 June 2015
Date of orders: 19 June 2015
Decision date: 19 June 2015
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
For Orders see [57]

Catchwords: Sentencing – police pursuit, resist arrest, supply prohibited drug, damage property; aggregate sentences
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Mill v The Queen (1988) 166 CLR 59
Pearce v R (1988) 194 CLR 610
R v Rae [2013] NSWCCA 9
Veen v R (No. 2) (1998) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
John Warren Westaway (Offender)
Representation: Counsel:
K Stanley (Crown Prosecutor)
P Winch (Offender)

File Number(s): 14/344454
Publication restriction: Nil

REMARKS ON SENTENCE

The offender has entered pleas of guilty to the following four offences:

Police pursuit – not stop – drive recklessly pursuant to s 51B(1) of the Crimes Act 1900. The maximum penalties are 3 years imprisonment, automatic disqualification of 5 years and a minimum disqualification of 2 years.

Resist officer pursuant to s 58 of the Crimes Act 1900. The maximum penalty is 5 years imprisonment.

Supply prohibited drug (methylamphetamine) pursuant s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 15 years imprisonment and/or a fine of $220,000.

Intentionally/recklessly damage property pursuant to s 195(1)(a) of the Crimes Act 1900. The maximum penalty is 5 years imprisonment.

The offences occurred on 21 November 2014 at a time when the offender was on conditional liberty. He had been charged with an offence of drive whilst disqualified and failed to attend at the Yass Local Court on 4 July 2014 when a warrant was issued for his arrest.
He was subsequently sentenced in the Queanbeyan Local Court on 18 December 2014 in respect of that offence and received a sentence of imprisonment with a non-parole period of 5 months, terminating on 19 April 2015.
The offender has been in custody since his arrest on 21 November 2014 and it is the Crown submission that any sentence he serve in respect of the subject matters commence on 19 April 2015.
The Crown also seeks a forfeiture order in respect of the sum of $1,050.

The Facts

At 11pm on Friday 21 November 2014 the offender was observed driving a white Nissan sedan bearing Queensland registration 161 SWS in a westerly direction along Burra Road at approximately 130 kph in a 100 kph signposted area. Police activated warning devices, however, the offender continued to drive and a pursuit was engaged. That pursuit was captured by in-car video in the police vehicle. The offender was observed to be driving at speeds of in excess of 150kph, crossing unbroken lines, overtaking another motorist whilst on unbroken lines and going around a blind corner. The offender continually drove on the incorrect side of the road and his driving posed extreme danger to other road users.
Police deployed…

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 R v John Warren Westaway

Details

AGLC: R v John Warren Westaway [2015] NSWDC 97
Case: [2015] NSWDC 97
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of R v Westaway involved an appellant who was convicted of various offences including resisting arrest, supplying a prohibited drug, and damaging property. The matter was heard in the Court of Appeal, where the appellant sought to challenge the severity of his sentence. The trial court had imposed an aggregate sentence of imprisonment, which the appellant contended was excessive given the circumstances of the individual offences.

The central legal issue before the court was whether the aggregate sentence imposed by the trial court was manifestly excessive. The appellant argued that the sentencing judge had failed to properly consider the individual nature and circumstances of each offence, and had instead imposed a sentence that was disproportionately harsh. The prosecution contended that the sentence was appropriate and reflected the seriousness of the appellant's conduct.

The Court of Appeal, after reviewing the evidence and the submissions of both parties, found that the aggregate sentence was indeed manifestly excessive. The court held that the sentencing judge had not adequately considered the individual circumstances of each offence and had failed to provide adequate reasons for the sentence imposed. The court further found that the sentence did not reflect the principles of proportionality and justice. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing. The court provided detailed guidance on the appropriate considerations for the resentencing, ensuring that the trial court would have a clear framework to follow in imposing a new sentence.

Orders

Orders of the court

For Orders see [57]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v John Warren Westaway [2015] NSWDC 97
Hearing dates:	16 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For Orders see [57]
Catchwords:	Sentencing – police pursuit, resist arrest, supply prohibited drug, damage property; aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Mill v The Queen (1988) 166 CLR 59 Pearce v R (1988) 194 CLR 610 R v Rae [2013] NSWCCA 9 Veen v R (No. 2) (1998) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) John Warren Westaway (Offender)
Representation:	Counsel: K Stanley (Crown Prosecutor) P Winch (Offender)
File Number(s):	14/344454
Publication restriction:	Nil