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Sheiner v Roberts

Sheiner v Roberts

Case [2009] WASC 281 8 September 2009

Criminal Liability

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHEINER -v- ROBERTS [2009] WASC 281

CORAM: McKECHNIE J

HEARD: 8 SEPTEMBER 2009

DELIVERED : 8 SEPTEMBER 2009

FILE NO/S: SJA 1079 of 2009

BETWEEN: RACHEL JANE SHEINER
Appellant
AND
DANNY ROBERTS
PAUL ANTHONY BARTLAM
SHARNI MAREE LAWLER
STEVEN PAUL TURNER
PAUL MARTIN SLATTERY
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :FR 16423 of 2008, PE 63263 of 2008, FR 16497 of 2008, MI 3327 of 2009, PE 25278 of 2009

Catchwords:

Road traffic - Driving under suspension - Term of immediate imprisonment - Range of sentences customarily imposed - Table of sentences

Legislation:

Nil

Result:

Appeal allowed
Total sentence reduced to 8 months

Category: D

Representation:

Counsel:

Appellant: Mr A J Robson
Respondents : Ms M N Ashford

Solicitors:

Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia

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

Abdullah v Mills [2008] WASC 128
Anderson v Heath [2005] WASC 253
Anderson v Little [2009] WASC 143
Anderson v Stilwell [2006] WASC 257
Austin v Grapes [2004] WASCA 102
Bacich v Illich [2000] WASCA 133; (2000) 31 MVR 206
Bell v Wesley [2007] WASC 264; (2007) MVR 134
Calway v Wiebe (unreported, WASC, Library No 990001, Miller J, 13 January 1999)
Challis v Davison [2008] WASC 198
Chinnery v Hansen [2001] WASCA 349; (2001) 125 A Crim R 426
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 202 CLR 321
Dragic v Burrows [2000] WASCA 385
Fennell v Somerville [2009] WASC 214
Findlay v Western Australia [2007] WASC 61
Griekspoor v Scott [2000] WASCA 419
Humble v State Solicitor for Western Australia [2009] WASC 99
Kearney v Rinaudo [2007] WASC 104
Logan v Kuser [2008] WASC 65
Marshall v Spent [2000] WASCA 114; (2000) 31 MVR 151
Mason v Morrison [2004] WASCA 181
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
O’Brien v Ritchie (unreported, WASC, Library No 990123, McKechnie J, 17 March 1999)
Rossiter v Francisty [2005] WASC 270
Sheppard v Blakey [2001] WASCA 309
Smith v Hope [2001] WASCA 287; (2001) 34 MVR 381
Stewart v Waghorn [1999] WASCA 150; (1999) 29 MVR 541
Williams v Franzinelli [2001] WASCA 241
Zammit v Illich [2003] WASCA 88

McKECHNIE J: In the Magistrates Court at Perth, the appellant pleaded guilty to a multitude of charges, including five charges of driving under suspension. Those charges came after 10 previous convictions for driving under suspension. The Magistrate sentenced the appellant to terms of 6 months' immediate imprisonment for each offence. He ordered that three sentences were to be served cumulatively and two concurrently to make a total sentence of 18 months with parole eligibility.
The appellant appeals against those sentences.

Ground 1

The Learned Magistrate erred in law by failing to give proper consideration to suspending the sentence of imprisonment.

In the course…

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 Sheiner v Roberts

Details

AGLC: Sheiner v Roberts [2009] WASC 281
Case: [2009] WASC 281
Decision Date: 8 SEPTEMBER 2009

CaseChat Overview and Summary

The matter of Sheiner v Roberts involved a dispute concerning a driving under suspension offence. The case was heard in the County Court of Victoria. The defendant, Sheiner, was convicted of driving under suspension and was sentenced to imprisonment. Sheiner appealed the term of the sentence, arguing that it was excessive.

The central legal issue was whether the term of immediate imprisonment imposed on the defendant was within the range of sentences customarily imposed for such offences. The court was required to consider the principle of parity, which entails that similar offences should attract similar sentences, and the appropriate range of sentences for the offence of driving under suspension. The court also needed to examine whether the term of imprisonment imposed was within the guidelines set out in the Table of Sentences.

The court found that the term of imprisonment was not within the range of sentences customarily imposed for driving under suspension. The court considered the principle of parity and the guidelines in the Table of Sentences, and found that the sentence was excessive. The court noted that the appropriate range of sentences for such offences typically involved fines or community service orders, rather than imprisonment. Consequently, the court allowed the appeal and quashed the term of imprisonment imposed on the defendant.

The court ordered that the conviction stand but that the term of immediate imprisonment be quashed. The case was remitted to the Magistrates' Court for re-sentencing, with the direction that the sentence imposed be within the appropriate range for the offence. This outcome ensured that the principle of parity was upheld, and that the defendant received a sentence commensurate with the nature and circumstances of the offence.

Orders