RAAB -v- GODWIN & ORS [2004] WASCA 313

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 313
Case No:	SJA:1081/2004	Heard:	10 DECEMBER 2004
Coram:	SIMMONDS J	Delivered:	23/12/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant resentenced to community based order for period of 12 months
Category:	B
PDF Version

Parties:	JASON TIMOTHY RAAB WAYNE GODWIN TROY NATHAN BABICH BRYAN TREVOR MORRIS
Catchwords:	Criminal law and procedure Sentencing 32 counts of fraud One count of driving while legally disentitled to hold a driver's licence committed while the offender was subject to a conditional release order imposed for counts of fraud Offender not shown to be aware he was disqualified from driving as a result of court order Whether sentence of immediate imprisonment was the only appropriate disposition Whether Stipendiary Magistrate erred in failing to give proper consideration to suspending any period of imprisonment Whether total effective sentence of 16 months' imprisonment was manifestly excessive
Legislation:	Bail Act 1982 (WA) Criminal Code 1913 (WA), s 409(1)(c) Justices Act 1902 (WA), s 136AA Road Traffic Act 1974 (WA), s 49 Sentencing Act 1995 (WA), s 6(4), s 39, s 63, s 67, s 128(1), s 130(1)
Case References:	Chinnery v Hansen [2001] WASCA 349 Cross v Cook [2001] WASCA 242 Dinsdale v The Queen (2000) 74 ALJR 1538 Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 George v Birtwistle [2003] WASCA 75 Hegney v Cheeseman and Anor, unreported; SCt of WA; Library No 940466; 2 September 1994 Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995 Nevermann v The Queen (1989) 43 A Crim R 347 Zammit v Illich [2003] WASCA 88 Griekspoor v Scott [2000] WASCA 419 R v White [2002] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RAAB -v- GODWIN & ORS [2004] WASCA 313 CORAM : SIMMONDS J HEARD : 10 DECEMBER 2004 DELIVERED : 23 DECEMBER 2004 FILE NO/S : SJA 1081 of 2004 BETWEEN : JASON TIMOTHY RAAB

Appellant

AND

WAYNE GODWIN

TROY NATHAN BABICH

BRYAN TREVOR MORRIS

Respondents

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR BROWN SM

Citation : JO 6251/04, BS 533-538, BS 541-542/02, BS 625-538, BS 640-649/02

Catchwords:

Criminal law and procedure - Sentencing - 32 counts of fraud - One count of driving while legally disentitled to hold a driver's licence committed while the offender was subject to a conditional release order imposed for counts of fraud - Offender not shown to be aware he was disqualified from driving as a result of court order - Whether sentence of immediate imprisonment was the only

(Page 2)

appropriate disposition - Whether Stipendiary Magistrate erred in failing to give proper consideration to suspending any period of imprisonment - Whether total effective sentence of 16 months' imprisonment was manifestly excessive

Legislation:

Bail Act 1982 (WA)

Criminal Code 1913 (WA), s 409(1)(c)
Justices Act 1902 (WA), s 136AA
Road…

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 Raab v Godwin

Details

AGLC: Raab v Godwin [2004] WASCA 313
Case: [2004] WASCA 313
Decision Date: 23 DECEMBER 2004

CaseChat Overview and Summary

The appeal concerns a decision by the Stipendiary Magistrate of the Magistrates' Court of Victoria, who sentenced the appellant, Raab, on 32 counts of fraud and one count of driving while legally disentitled to hold a driver's licence. The court was required to determine whether the sentence of immediate imprisonment was appropriate, and if the Magistrate erred in not considering a suspension of any period of imprisonment. The appellant argued that the total effective sentence of 16 months' imprisonment was manifestly excessive.

The central issue before the court was whether the sentence imposed was appropriate in the circumstances, particularly considering the lack of evidence that the appellant was aware of his disqualification from driving as a result of the court order. The court examined whether the Magistrate had given adequate consideration to the possibility of suspending any period of imprisonment. The court also assessed the totality of the sentence, examining whether the 16 months' imprisonment was manifestly excessive, taking into account the nature and circumstances of the offences and the appellant's background.

In reviewing the decision, the court found that the Magistrate had not given proper consideration to the possibility of suspending any period of imprisonment, as required by the sentencing principles. The court noted that the appellant was not shown to be aware of his disqualification from driving, which was a relevant mitigating factor. Additionally, the court concluded that the total effective sentence of 16 months' imprisonment was manifestly excessive, given the appellant's background and the nature of the offences. The court determined that a community-based order for a period of 12 months would be a more appropriate sentence.

The appeal was allowed, and the appellant was resentenced to a community-based order for a period of 12 months. This order reflects the court's view that the original sentence was manifestly excessive and that a more lenient approach was warranted given the circumstances of the case.

Orders

Orders of the court

Appeal allowed

Appellant resentenced to community based order for period of 12 months

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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