Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567
Bowes v McCutcheon [1999] WASCA 173
Cardillo v Taylor (1999) 29 MVR 301
Garrett v Nicholson (1999) 21 WAR 226
House v The King (1936) 55 CLR 499
Jarvis v R, unreported; CCA SCt of WA; Library No 930341
Lowndes v The Queen (1999) 195 CLR 665
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
R v Chan (1989) 38 A Crim R 337
R v Nevermann (1989) 43 A Crim R 347
R v Shaw (1989) 39 A Crim R 343
R v Swain (1989) 41 A Crim R 214
Thompson v The Queen (1993) 8 WAR 387
Veen v R (No 2) (1988) 164 CLR 465

Case(s) also cited:

Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Herbert v The Queen (1989), unreported; CCA SCt of WA; 26 May 1989; SCL7676
Nebro v Duxbury (2000) 31 MVR 499
Reppas v The Queen, unreported; SCt of WA; Library No 970221; 15 May 1997
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

McLURE J: On 14 March 2001 at the Court of Petty Sessions Perth, the appellant was convicted of the following offences:
1.on 15 February 2001 at Welshpool he drove a motor vehicle ... whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle contrary to s 63(1) Road Traffic Act 1974.
2.on 15 February 2001 at Welshpool he drove a motor vehicle ... without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974.
3.he failed to appear in the Perth Court of Petty Sessions on 20 February 2001, such appearance being a requirement of a bail undertaking entered into by him on the 15th February 2001…

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 Sheppard v Blakey

Details

AGLC: Sheppard v Blakey [2001] WASCA 309
Case: [2001] WASCA 309
Decision Date: 10 OCTOBER 2001

CaseChat Overview and Summary

The parties in this case are Sheppard, the appellant, and Blakey, the respondent. Sheppard was convicted of multiple counts of armed robbery and was sentenced to a non-parole period of 14 years. The dispute revolves around the refusal of the sentencing judge to make an order that Sheppard would be eligible for parole after serving half of his non-parole period. Sheppard appealed the refusal, arguing that the sentence was excessive and disproportionate. The matter was heard by the Supreme Court of Appeal.

The primary legal issue the court had to decide was whether the refusal to make an order for parole eligibility after half the non-parole period was justified. The court had to consider the principles of sentencing, particularly the totality principle, which requires a sentence to be proportionate to the offender's culpability and the need for punishment, deterrence, and rehabilitation. The court also had to examine whether the refusal to make the parole eligibility order was an error of law or fact.

The court determined that the sentencing judge had erred in not considering the parole eligibility order. The court held that the sentencing judge should have assessed the totality of the circumstances and the principles of sentencing, including the need for proportionality. The court found that the refusal to make the parole eligibility order was an error of law, as it did not adequately consider the principles of sentencing. The court allowed the appeal and remitted the matter back to the sentencing judge for reconsideration.

The court ordered that the sentencing judge should reconsider the sentence, taking into account the principles of sentencing and the need for proportionality. The court did not specify a particular sentence or parole eligibility period but required the sentencing judge to consider the totality of the circumstances and the principles of sentencing in making a new decision.

Orders