Appeal - Driving under suspension - Imprisonment - Whether should properly have been suspended - Calling in suspended sentences - Principles to be applied

Legislation:

Road Traffic Act 1974, s 66

Sentencing Act 1995, s 80(1) and s 80(3)

Result:

Appeals allowed
Suspended sentences substituted
No orders made in relation to calling in of previous suspended sentences

Representation:

SJA 1125 of 1999

Counsel:

Appellant: Mr J B Prior
Respondent: Ms C V M Barton

Solicitors:

Appellant: Williams Ellison
Respondent: State Crown Solicitor

SJA 1132 of 1999

Counsel:

Appellant: Mr J B Prior
Respondent: Ms C V M Barton

Solicitors:

Appellant: Williams Ellison
Respondent: State Crown Solicitor

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

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Cranssen v The King (1936) 55 CLR 509
House v The King (1936) 55 CLR 499
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
O'Brien v Ritchie, unreported; SCt of WA, Library No 990123, 17 March 1999
Police v Cadd & Ors (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394
R v Osenkowski (1982) 30 SASR 212
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Walsh v Thomas & Anor, unreported; SCt of WA; Library No 970711; 17 December 1997

Case(s) also cited:

Nil

MILLER J:
History
The appellant was brought before the Court of Petty Sessions at Midland on 15 June 1999 on a series of offences which arose out of his apprehension on a traffic matter on 5 January 1999. On that day he was driving a Ford Fairmont vehicle in Farrell Road, Stratton when he was stopped by police officers. It became apparent that he had consumed liquor and he was requested by the police to undergo a preliminary test. As a result of that test he was then required to accompany police to the Midland police station for a breath analysis test. This he refused to do, walking away from the police and shouting obscenities at them. After being warned several times to desist from his conduct he was advised that he was under arrest. An attempt was made to put him in the rear of a police patrol vehicle but the appellant pulled away and struggled with police, kicking an officer three times in the groin area and grabbing a second officer before striking him to the side of the face and forehead.
Ultimately police subdued the appellant who was handcuffed, placed in the rear of a van and taken to Midland police station. There he was breath tested and…

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 Stewart v Waghorn

Details

AGLC: Stewart v Waghorn [1999] WASCA 150
Case: [1999] WASCA 150
Decision Date: 1 SEPTEMBER 1999

CaseChat Overview and Summary

The matter before the court involved an appeal by the respondent, Waghorn, against a conviction and sentence for driving while his licence was suspended. The conviction and sentence were imposed by the Magistrates' Court. Waghorn was sentenced to imprisonment for a period of six months, with a suspension of two months of this sentence. The appellant, Stewart, sought to argue that the sentence should not have been suspended at all, or that if it was, the period of suspension should have been longer.

The primary legal issue before the court was whether the magistrate had exercised their discretion to suspend part of the custodial sentence appropriately. The court was required to consider the principles to be applied when a sentence is suspended, particularly in circumstances where the offence was driving while a licence was suspended. The court also had to consider whether the sentence was manifestly inadequate.

The court held that the magistrate had not exercised their discretion to suspend part of the sentence appropriately. The court found that the principles for suspending sentences require the court to consider the nature and circumstances of the offence, the character and antecedents of the offender, and the need to deter the offender and others from committing similar offences. The court found that the magistrate had not adequately considered the need for deterrence in this case. The court also found that the sentence was manifestly inadequate given the nature and seriousness of the offence. The appeal was allowed, the conviction was affirmed, and the sentence was set aside and replaced with a sentence of imprisonment for a period of six months, with no suspension.

Orders