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Warren v Van Den Berg

Warren v Van Den Berg

Case [2004] WASCA 32 19 February 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WARREN -v- VAN DEN BERG [2004] WASCA 32

CORAM: ROBERTS-SMITH J

HEARD: 19 FEBRUARY 2004

DELIVERED : 19 FEBRUARY 2004

FILE NO/S: SJA 1139 of 2003

BETWEEN: PETER JOHN WARREN
Appellant
AND
ALBERT VAN DEN BERG
Respondent

Catchwords:

Criminal law and procedure - Appeal - Justices - Road traffic offence - Dangerous driving - Sentence - Fine of $600 and motor driver's licence disqualification for six months - Unrepresented appellant - Whether opportunity to put circumstances in mitigation - Need for licence for work purposes - Whether excessive punishment

Legislation:

Justices Act 1902 (WA), s 199

Sentencing Act 1995 (WA), s 105

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms J C Pritchard

Solicitors:

Appellant: In person
Respondent: State Solicitor

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

Dinsdale v The Queen (2000) 202 CLR 321
Forbes v Durant [1999] WASCA 85
G v Bourne (1991) 105 FLR 52
Hemsley v McLean, unreported; SCt of WA; Library No 950156; 22 September 1995
House v The King (1936) 55 CLR 499
Logan v Weary [1984] WAR 41
Lowndes v The Queen (1999) 195 CLR 665
Papadopolous v Hunter (1995) 85 A Crim R 572
Plenty v Bargain [1999] WASCA 67
R v Tait (1979) 46 FLR 386
Re Callaghan and Anor; Ex parte Kent (1969) 2 NSWR 184
Re Teece; Ex parte Kelly [1966] 2 NSWR 674
Svenson v Cooper (1986) 4 MVR 150

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Demarte v Fox, unreported; SCt of WA; Library No 980084; 26 February 1998
Jennings v Carson & Fletcher, unreported; SCt of WA; Library No 980608; 21 October 1998
Lewis v Bennett, unreported; SCt of WA; Library No 930406; 14 July 1993
McColgan v Seiler [2000] WASCA 168
Mullane v Smith (1989) 10 MVR 111
Nye v Lewis (1987) 4 MVR 511
Ogilvie v Mills, unreported; SCt of WA; Library No 940113; 2 March 1994

ROBERTS-SMITH J: On 17 November 2003 the appellant was tried and convicted before his Worship Mr Malley SM in the Armadale Court of Petty Sessions of one count of dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA) ("the RTA").
He applied for leave to appeal by notice dated 5 December 2003 and on 16 December 2003, Scott J granted leave to appeal on the ground that the learned Magistrate erred in imposing upon the appellant a disqualification of motor driver's licence for six months and a fine of $600 as a consequence of failing properly to consider:
(a)the maximum sentence for the offence;
(b)the standards of sentencing customarily observed for offences of this nature;
(c)the place which the offence in question occupies in the scale of seriousness of offences of this nature;
(d)the appellant's age and antecedents, and
(e)any opportunity for the appellant to make any comments in mitigation prior to sentencing.
The appellant has filed an affidavit sworn 4 February 2004…

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 Warren v Van Den Berg

Details

AGLC: Warren v Van Den Berg [2004] WASCA 32
Case: [2004] WASCA 32
Decision Date: 19 FEBRUARY 2004

CaseChat Overview and Summary

In Warren v Van Den Berg, the appellant was convicted of dangerous driving and sentenced to a $600 fine and six months' disqualification from holding a motor driver's licence. The appellant, Warren, was unrepresented at the court hearing. The primary issue before the court was whether the appellant had an adequate opportunity to present mitigating circumstances before the sentence was imposed, particularly considering the necessity of the licence for his employment. Warren contended that the sentence was excessively harsh given his need for the licence to sustain his livelihood.

The court examined the procedure followed in the original hearing to determine whether the appellant had been afforded a fair opportunity to present his case. It considered the principles of natural justice, which require a party to have the opportunity to put forward all relevant facts and circumstances that could mitigate the severity of a penalty. The court noted that the appellant's unrepresented status and the urgency of the proceedings might have impacted his ability to fully articulate these mitigating factors. Furthermore, the court weighed the necessity of the driver's licence for the appellant's employment against the public interest in deterring dangerous driving.

Ultimately, the court found that the appellant had not been given a sufficient opportunity to present mitigating circumstances, and the penalty imposed was excessively harsh. The court concluded that the appellant's need for the licence to maintain employment constituted a significant factor that was not adequately considered in the original sentencing. As a result, the appeal was allowed, and the sentence was quashed. The matter was remitted to the original court for reconsideration in light of the appellant's unrepresented status and the mitigating circumstances.

Orders