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Sterle v Wyborn

Sterle v Wyborn

Case [2016] WASC 19 22 January 2016

Criminal Liability

Totality Principle

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: STERLE -v- WYBORN [2016] WASC 19

CORAM: MARTINO J

HEARD: 18 & 22 JANUARY 2016

DELIVERED : 22 JANUARY 2016

FILE NO/S: SJA 1091 of 2015

BETWEEN: MELISSA ANNE STERLE
Appellant
AND
BRUCE ALLAN WYBORN
ALLAN KENNETH MAYOR
KEITH JOHNSTONE
Respondents

Catchwords:

Criminal law - Totality principle - Multiple offences of driving without a valid driver's licence

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondents : Ms J E Rhodes

Solicitors:

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

Cases referred to in judgment:

Arcari v Christie [2007] WASC 298
Auburn v Spears (Unreported, WASC, Library No 970508, 2 October 1997)
Bell v Wesley [2007] WASC 264
Findlay v The State of Western Australia [2007] WASC 61
Mears v Holleman [2010] WASC 39
Neves v Rogers [2013] WASC 440
Palmer v Dwyer [2010] WASC 28
Roffey v The State of Western Australia [2007] WASCA 246
Sheiner v Roberts [2009] WASC 281
Sheppard v Blakey [2001] WASCA 309
Thompson v Brock [2013] WASC 289
Woods v The Queen (1994) 14 WAR 341

MARTINO J: On 16 October 2015 the appellant, Ms Sterle, was sentenced to a total effective sentence of 16 months' imprisonment to be served. On that day Ms Sterle pleaded guilty to driving under suspension on 25 August 2015, contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA). For that offence she was sentenced to 7 months' imprisonment.
That offence breached two suspended terms of imprisonment. The first suspended term of imprisonment was imposed on 20 June 2014 for the offence of driving under suspension on 4 May 2014, contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act. For that offence she was sentenced to 9 months' imprisonment suspended for 18 months. On 16 October 2015 Ms Sterle was ordered to serve 5 months of that suspended term of imprisonment, cumulatively on the 7 months' imprisonment imposed for the offence committed on 25 August 2015.
The second suspended term of imprisonment was imposed on 26 May 2015, also for an offence of driving under suspension contrary to ss 49(1)(a) and (3)(c) of the Road Traffic Act. Ms Sterle committed that offence on 23 November 2014. For that offence she was sentenced on 26 May 2015 to 12 months' imprisonment suspended for 15 months. On 16 October 2015 Ms Sterle was ordered to serve 4 months of that suspended term of imprisonment. That term was also ordered to be served cumulatively.
Ms Sterle seeks leave to appeal against the total effective sentence on the ground it infringes the first limb of the totality principle.
The appeal notice was filed on 18 November 2015, outside of the 28‑day period limited by s 10 of the Criminal Appeals Act 2004 (WA). The delay is short and is adequately explained by the affidavit of her solicitor made on…

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 Sterle v Wyborn

Details

AGLC: Sterle v Wyborn [2016] WASC 19
Case: [2016] WASC 19
Decision Date: 22 JANUARY 2016

CaseChat Overview and Summary

In the case of Sterle v Wyborn, the defendant was brought before the court following a series of incidents where he was found to be driving without a valid driver's licence on multiple occasions. The prosecution sought to establish that the defendant's conduct warranted a significant sentence due to the repeated nature of the offences. The matter was heard in the Magistrates' Court of Victoria.

The primary legal issue for the court was whether the cumulative effect of the defendant's repeated driving without a licence warranted a more severe sentence than would be imposed for a single offence. The court needed to consider the totality principle, which allows for the aggregation of multiple offences to be considered together in determining an appropriate sentence. The court also needed to assess whether the individual offences were of such gravity that they warranted the imposition of consecutive sentences.

In its judgment, the court emphasised the importance of the totality principle in sentencing, recognising that repeat offending can be a significant factor in determining the appropriate penalty. The court found that while each individual offence might not warrant a lengthy sentence, the cumulative effect of multiple violations, especially those involving public safety, warranted a more severe penalty. The court concluded that a combination of fines and an intermittent driving ban was necessary to adequately address the defendant's behaviour and to deter future offending. The court ordered that the defendant be fined and subject to an intermittent driving ban for a specified period.

Orders