Spack v Godfrey - [2009] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SPACK -v- GODFREY [2009] WASC 262

CORAM: McKECHNIE J

HEARD: 19 AUGUST 2009

DELIVERED : 11 SEPTEMBER 2009

FILE NO/S: SJA 1065 of 2009

BETWEEN: JAY AARON SPACK
Appellant
AND
ROGER MARTIN GODFREY
First Respondent
TERRENCE RUSSELL KUSER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 10844 of 2007, PE 18488 of 2008

Catchwords:

Road traffic - Driving while disqualified - Previous convictions - Whether sentence of suspended imprisonment appropriate - Failure to take account of plea of guilty - Resentence

Legislation:

Nil

Result:

Appeal allowed
Intensive supervision order imposed

Category: B

Representation:

Counsel:

Appellant:     Ms B J Lonsdale
First Respondent           :     Mr D E Leigh
Second Respondent      :     Mr D E Leigh

Solicitors:

Appellant:     Mark Andrews Legal Pty Ltd
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

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

McDonald v White [2007] WASCA 213

McKECHNIE J: On 25 March 2008 the appellant pleaded guilty to two counts of driving while under suspension, and two other matters for which he received fines. In respect of the charges of driving under suspension he was sentenced to 12 months' imprisonment on each count suspended for 2 years to run concurrently.
An application for leave to appeal was not lodged until 26 June 2009 and so the appellant seeks an extension of time within which to appeal and leave to appeal the sentence of 12 months' imprisonment on grounds which were amended without objection at the hearing.

Extension of time within with to appeal

The original affidavit seeking an extension of time was plainly inadequate in its explanation and if that had been the only evidence I would have had no hesitation in refusing an extension of time. However, following the receipt of the respondent's submissions on sentence the appellant has filed two further affidavits, one sworn by him and one by his solicitor which go some way to, though not entirely, explaining the delay.
The appellant was subsequently charged with a further offence of driving while disqualified and giving a false name to police, those offences allegedly occurring on 26 June 2008. The record of court proceedings show a series of adjournments for those matters stretching until 21 August 2009. The appellant's current solicitors are not responsible for those adjournments until just before the notice of appeal was filed by them. I have not heard from the appellant's former solicitors so I will say nothing further about the delay or the reasons for it.
I note also that on 25 May 2009 the appellant was charged with possession of a prohibited drug and possession of a pipe for use in connection with the smoking of a prohibited drug. There were detectible traces of a prohibited drug on the pipe.
I will grant an extension of time but only because I am satisfied that there will…

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 Spack v Godfrey

Details

AGLC: Spack v Godfrey [2009] WASC 262
Case: [2009] WASC 262
Decision Date: 11 SEPTEMBER 2009

CaseChat Overview and Summary

The matter of Spack v Godfrey was heard in the Court of Appeal, with Spack, the appellant, challenging his sentence for driving while disqualified. Spack had pleaded guilty to this offence and had previous convictions for similar matters. The primary issue before the court was whether the sentence imposed, namely a suspended imprisonment term, was appropriate given the circumstances and the plea of guilty. The court was also tasked with considering whether the primary judge had failed to adequately consider the plea of guilty in the sentencing process.

The court found that the primary judge had indeed failed to sufficiently consider the appellant's plea of guilty, which should have been a mitigating factor in the sentencing. The court emphasised the importance of taking into account a defendant's early admission of guilt as it reflects favourably on the offender's accountability and remorse. Furthermore, the court noted that the sentence of suspended imprisonment, while potentially suitable for a first-time offender, did not adequately address the appellant's repeated breaches of the road traffic laws. Consequently, the court concluded that the sentence was inappropriate and that the appellant should be subject to a more stringent penalty.

In light of these findings, the appeal was allowed and the appellant was resentenced to an intensive supervision order. This decision underscores the necessity for courts to appropriately weigh all relevant factors, including the plea of guilty, in determining an appropriate sentence. The intensive supervision order was deemed more suitable given the appellant's history of reoffending and the need for stricter monitoring and rehabilitation.

Orders

Orders of the court

Appeal allowed

Intensive supervision order imposed

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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