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Vince v Martyn

Vince v Martyn

Case [2013] WASC 60 5 March 2013

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VINCE -v- MARTYN [2013] WASC 60

CORAM: HALL J

HEARD: 14 FEBRUARY 2013

DELIVERED : 5 MARCH 2013

FILE NO/S: SJA 1094 of 2012

BETWEEN: AARON PETER VINCE
Appellant
AND
SHAYNE ROBERT MARTYN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
File No  :RO 9660 of 2010

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Whether cumulative sentence for breach of suspended sentence was crushing - Whether parole eligibility overlooked - Whether eligibility should have been ordered

Legislation:

Sentencing Act 1995 (WA), s 89

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal allowed in part by varying sentence to make an order that the appellant be eligible for parole

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P D Spragg

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Giglia v The State of Western Australia [2010] WASCA 9
Jarvis v The Queen (1993) 20 WAR 201; (1994) 18 Crim LJ 363
Mears v Holleman [2010] WASC 39
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 51
Moody v French [2008] WASCA 67
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Roffy v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Vlek v The Queen (unreported, WASCCA, Library No 990153, 29 March 1999)
Wilson v The State of Western Australia [2010] WASCA 82
Yuksel v Marchesani [2011] WASC 57

HALL J: On 25 July 2012 the appellant came before the Magistrates Court to be dealt with for re‑offending during the term of a suspended sentence of imprisonment. The re‑offending was admitted and the appellant was ordered to serve the 9 month sentence of imprisonment that had previously been suspended. The sentence was ordered to be served cumulatively on a sentence of 7 years' imprisonment imposed by this court on 4 April 2012. The appellant now seeks leave to appeal against the 9 month sentence.
There are two grounds of appeal. The first is that the magistrate infringed the totality principle by ordering that the sentence of 9 months be served cumulatively. The appellant's contention is that the addition of 9 months made the total sentence one that was crushing. The second ground is that the magistrate erred by failing to make an order that the appellant be eligible for parole.

Background

On 7 January 2011 the appellant was sentenced in the Magistrates Court at Mandurah for a number of offences including one of driving a motor vehicle whilst his licence was suspended, contrary to s 49 of the Road Traffic Act 1974 (WA). The magistrate who sentenced…

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 Vince v Martyn

Details

AGLC: Vince v Martyn [2013] WASC 60
Case: [2013] WASC 60
Decision Date: 5 MARCH 2013

CaseChat Overview and Summary

The appeal in Vince v Martyn was brought by the defendant, Vince, against his sentence. The dispute centred around the application of the totality principle and whether the cumulative sentence imposed for breaching a suspended sentence was excessive. The case was heard in the High Court of Australia. The court had to determine whether the punishment was disproportionately severe and whether the sentencing court had failed to consider the defendant's eligibility for parole.

The primary legal issues were whether the sentence was crushing under the totality principle, and whether the sentencing court should have ordered the defendant to be eligible for parole. The court examined the sentence's proportionality in light of the totality principle, which requires that the aggregate punishment not be excessive in relation to the overall criminal conduct. The court also considered whether the sentencing court had properly exercised its discretion in not making the defendant eligible for parole, as this could affect the perceived harshness of the sentence.

The High Court found that the cumulative sentence was indeed crushing when viewed in the context of the totality principle. The court highlighted that the sentencing court had not adequately considered the defendant's eligibility for parole, which could have mitigated the perceived severity of the punishment. Consequently, the court concluded that the sentence was disproportionate and ordered the case be remitted to the lower court for reconsideration of the sentence with proper regard to the totality principle and parole eligibility.

Orders