VASALLO -v- ALLISON [2006] WASC 147

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 147
Case No:	SJA:1097/2005	Heard:	10 APRIL 2006
Coram:	LE MIERE J	Delivered:	27/07/06
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	A
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Parties:	BRENDAN JAMES VASALLO ANDREW ALLISON DANIEL ALLEN MCLEAN
Catchwords:	Road Traffic Act 1974 (WA) Multiple infringements for driving while licence disqualified Whether further periods of disqualification cumulative on each other Correction of sentence Whether compliant with Sentencing Act and Sentencing Regulations
Legislation:	Criminal Appeals Act 2004 (WA), s 14 Road Traffic Act 1974 (WA), s 49, s 60 Sentencing Act 1995 (WA), s 14, s 37, s 105, s 148 Sentencing Regulations, reg 5
Case References:	Cooke v Ginby (1994) 21 MVR 351 Sevelj v Roffey [2002] WASCA 20 Whitby v Williams (1987) 5 MVR 268 Cotton v Walker (1992) 11 WAR 55 Hart v Rankin [1979] WAR 144 Logan v Weary [1984] WAR 41 Sparks v Bellotti [1981] WAR 65 Stojkovski v Fitzgerald [1989] WAR 328 Traegar v de Albuquerque (1997) 18 WAR 432 Walsh v Giumelli [1975] WAR 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : VASALLO -v- ALLISON [2006] WASC 147 CORAM : LE MIERE J HEARD : 10 APRIL 2006 DELIVERED : 27 JULY 2006 FILE NO/S : SJA 1097 of 2005 BETWEEN : BRENDAN JAMES VASALLO

Appellant

AND

ANDREW ALLISON

Respondent

FILE NO/S : SJA 1098 of 2005 BETWEEN : BRENDAN JAMES VASALLO

Appellant

AND

DANIEL ALLEN MCLEAN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PM 51 of 2005, BR 1097 of 2005

(Page 2)

Catchwords:

Road Traffic Act 1974 (WA) - Multiple infringements for driving while licence disqualified - Whether further periods of disqualification cumulative on each other - Correction of sentence - Whether compliant with Sentencing Act and Sentencing Regulations

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Road Traffic Act 1974 (WA), s 49, s 60
Sentencing Act 1995 (WA), s 14, s 37, s 105, s 148
Sentencing Regulations, reg 5

Result:

Appeals dismissed

Category: A

Representation:

SJA 1097 of 2005

Counsel:

Appellant : Mr M C Owens

Respondent : Ms L A Eddy

Solicitors:

Appellant : Max Owens & Co

Respondent : State Solicitor's Office

SJA 1098 of 2005

Counsel:

Appellant : Mr M C Owens

Respondent : Ms L A Eddy

Solicitors:

Appellant : Max Owens & Co

Respondent : State Solicitor's Office

(Page 3)

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

Cooke v Ginby (1994) 21 MVR 351
Sevelj v Roffey [2002] WASCA 20
Whitby v Williams (1987) 5 MVR 268

Case(s) also cited:

Cotton v Walker (1992) 11 WAR 55
Hart v Rankin [1979] WAR 144
Logan v Weary [1984] WAR 41
Sparks v Bellotti [1981] WAR 65
Stojkovski v Fitzgerald [1989] WAR 328
Traegar v de Albuquerque (1997) 18 WAR 432
Walsh v Giumelli [1975] WAR 114

(Page 4)

1 LE MIERE J

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 Vasallo v Allison

Details

AGLC: Vasallo v Allison [2006] WASC 147
Case: [2006] WASC 147
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an appeal brought by Brendan James Vasallo against the Magistrates Court's decision to impose a disqualification from holding a motor vehicle driver's licence on him for multiple offences of driving while disqualified. The Magistrate had imposed a nine-month disqualification period on Vasallo for two separate offences, which was to be cumulative with a prior six-month disqualification period. Vasallo argued that the Magistrate erred in making the disqualifications cumulative and not giving sufficient reasons, as well as in making the disqualifications without proper service of a summons. The court had to decide if the Magistrate's decision was in accordance with the law and if there was a substantial miscarriage of justice.

The court held that the Road Traffic Act 1974 (WA) required the disqualification periods to be cumulative, and that the Sentencing Act 1995 (WA) did not apply to the disqualification orders. The court found that the Magistrate did not err in making the disqualifications cumulative as the appellant was already subject to a disqualification period at the time of the later offences. The court also held that the lack of a summons did not affect the Magistrate's power to impose a sentence, as long as the appellant was given an opportunity to be heard. Although the Magistrate did not have the power to backdate the disqualification, the court concluded that no substantial miscarriage of justice had occurred.

The court dismissed both appeals, holding that the Magistrate's decision was in accordance with the law and that there was no substantial miscarriage of justice.

Orders