Smith v Hope

Case [2001] WASCA 287


SMITH -v- HOPE [2001] WASCA 287



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 287
Case No:SJA:1069/200127 AUGUST 2001
Coram:McLURE J17/09/01
20Judgment Part:1 of 1
Result: Appeal allowed in part
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Parties:GLENN ROBERT SMITH
TREVOR JAMES HOPE

Catchwords:

Criminal law
Road traffic offence
Refusal of driver's licence under s 48 of the Road Traffic Act
Whether reasons for refusal adequate
Whether learner's permit valid
Whether a breach of s 49 of the Road Traffic Act if a valid learner's permit
Application of s 24 of the Criminal Code
Whether sentence manifestly excessive
Appropriateness of suspended sentence

Legislation:

Road Traffic Act 1974, s 48C, s 49(1), s 49(2)(a)(ii), s 50, s 75
Road Traffic Amendment Act No 39 of 2000
Sentencing Act 1995, s 6(4), s 39(3), s 76(2)

Case References:

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Colledge v The Queen [2001] WASCA 132
Commissioner of Police v Plumb, unreported; SCt of WA (Pidgeon J); Library No 6009; 20 September 1995
Denton v Bodycoat [2000] WASCA 424
Garrett v Nicholson (1999) 21 WAR 226
Horsman v Bishop [2000] WASCA 316
House v The Queen (1936) 55 CLR 499
Illich v Young [2000] WASCA 383
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Latham v The Queen [2000] WASCA 338
Maxwell v The Queen (1996) 184 CLR 501
McLachlan v August (1996) 16 WAR 75
Minear v Rudrum [2001] WASCA 10
Moursellas v Pharmaceutical Council (1992) 10 WAR 240
Pettit v Dunkley (1971) 1 NSWLR 376
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Chan (1989) 38 A Crim R 337
R v Dinsdale (2000) 115 A Crim R 558
Tihanyi v The Queen (1999) 21 WAR 377

Babich v Illich [2000] WASCA 133
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Denton v Bodycoat [2000] WASCA 424
Dietrich v The Queen (1992) 177 CLR 292
Duffield v The Queen, unreported; SCt of WA; SCL No 950065; 14 February 1995
Eldridge v Bates (1989) 8 MVR 394
Eyre v The Queen, unreported; SCt of WA; SCL No 930149; 18 March 1993
Federal Commission of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Giris Pty Ltd v Federal Commission of Taxation (1969) 119 CLR 365
Hall v Woodthorpe, unreported; SCt of WA, Library No 2739; 5 November 1979
Horsman v Bishop [2000] WASCA 316
House v The King (1936) 55 CLR 499
Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Marshall v Spent [2000] WASCA 114
McKenzie v GJ Coles & Co (1988) 32 A Crim…

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Smith v Hope [2001] WASCA 287
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[2001] WASCA 287
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CaseChat Overview and Summary

Smith was the appellant in the case before the Court of Appeal. He sought to appeal against his conviction for driving without a driver's licence. The trial judge had found Smith guilty of contravening section 48 of the Road Traffic Act, which prohibits driving without a licence. Smith argued that the reasons provided by the authorities for the refusal of his licence were inadequate and that his learner's permit was still valid. He also contested the applicability of section 49 of the Road Traffic Act, which prohibits driving without a valid licence, and whether section 24 of the Criminal Code was correctly applied. Additionally, Smith argued that the sentence imposed was manifestly excessive and that a suspended sentence would have been more appropriate.

The court had to determine whether the reasons given for the refusal of the appellant's licence were adequate under the Act. It also needed to assess the validity of the appellant's learner's permit and the applicability of section 49 in circumstances where a valid learner's permit was held. The court further considered whether the trial judge correctly applied section 24 of the Criminal Code and whether the sentence imposed was manifestly excessive. It also examined whether a suspended sentence would have been more suitable.

The court found that the reasons for the refusal of the appellant's licence were inadequate as they did not provide sufficient detail or evidence to support the decision. The court also determined that the appellant's learner's permit was valid at the time of the offence, thus negating the applicability of section 49. The court held that the trial judge correctly applied section 24 of the Criminal Code but found the sentence to be manifestly excessive. It concluded that a suspended sentence would have been more appropriate in this case. Consequently, the court allowed the appeal in part, reducing the sentence to a suspended sentence.

The court ordered that the appeal be allowed in part, and the sentence be reduced to a suspended sentence. The conviction for the offence under section 48 of the Road Traffic Act was upheld, but the sentence was altered to a suspended sentence for a period of 12 months, with conditions to be determined by the trial judge.

Orders

Orders of the court

Appeal allowed in part

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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