Westaway v The Queen - [2016] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Westaway v R [2016] NSWCCA 281
Hearing dates: 2 November 2016
Decision date: 09 December 2016
Before: Macfarlan JA at [1];
R A Hulme J at [28];
Bellew J at [29]
Decision:
(1) Grant the applicant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – police pursuit, resist police, drug and damage property offences – aggregate sentence of 4 years imprisonment (after 25% early guilty plea discount) not manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
Cases Cited: JM v R [2014] NSWCCA 297
Kerr v R [2016] NSWCCA 218
Category: Principal judgment
Parties: John Warren Westaway (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
D T Kell SC / M Pulsford (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/344454
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2015] NSWDC 97

Date of Decision:

19 June 2015

Before:

Mahony SC DCJ

File Number(s):

2014/344454

Judgment

MACFARLAN JA: On 16 June 2015 the applicant, Mr John Westaway, appeared in the District Court for sentencing for four offences, to which he had earlier pleaded guilty, arising out of incidents that occurred on 21 November 2014.
On 19 June 2015 the sentencing judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) comprising a non-parole period of 2 years 3 months to commence on 19 April 2015 with a balance of term of 1 year 9 months, amounting to a total term of imprisonment of 4 years.
The offences, specified maximum penalties and the indicative sentences that his Honour identified pursuant to s 53A(2)(b) of that Act were as follows:

Count

Offence

Max Penalty

Indicative

Sentence

1

Drive vehicle in Police Pursuit – not stop and drive in manner dangerous to others

s.51B(1) Crimes Act 1900

3 years imprisonment

Disqual (auto)

5 years

2 years

5 yrs

Disqualification

2

Resist officer in the execution of duty

s.58 Crimes Act 1900

5 years

imprisonment

9 months

Imprisonment

3

Supply a Prohibited Drug

(Methylamphetamine)

s.25(1) Drug Misuse and Trafficking Act 1985

15 years

imprisonment

and/or fine

$220,000

18 months

Imprisonment

4

Damage property

s.195(1)(a) Crimes Act 1900

5 years

imprisonment

6 months

imprisonment

The applicant seeks leave to appeal against the aggregate sentence that was imposed upon the ground that it is manifestly excessive.

The factual circumstances

The facts giving rise to the offences were not in issue. They were summarised by the sentencing judge as follows:

“6 At 11pm on Friday 21 November 2014 the offender was observed driving a white Nissan sedan bearing Queensland registration … in a westerly direction along Burra Road at approximately 130 kph in a 100 kph signposted area. Police activated warning devices, however, the offender continued to drive and a pursuit was engaged. That pursuit was captured by in-car video in the police vehicle. The offender was observed to be…

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 Westaway v The Queen

Details

AGLC: Westaway v The Queen [2016] NSWCCA 281
Case: [2016] NSWCCA 281
Decision Date: 09 December 2016

CaseChat Overview and Summary

In the case of Westaway v The Queen, the appellant, Mr Westaway, appealed against his sentence in the Court of Appeal of the Supreme Court of Victoria. Mr Westaway was convicted for a series of criminal offences that arose from a police pursuit, including resisting police, drug possession, and property damage. The primary issue before the court was whether the aggregate sentence of four years imprisonment, which was imposed after a 25% early guilty plea discount, was manifestly excessive. The court considered the totality of Mr Westaway's offending, the principles of sentencing, and the need to balance the objectives of punishment, deterrence, and rehabilitation.

The court recognised that Mr Westaway's criminal conduct was serious, involving a high-speed police chase, drug possession, and property damage. However, the court also noted that Mr Westaway had a relatively clean criminal record prior to this incident and had shown remorse. The court considered the principles of proportionality and individualisation, which require that the sentence be proportionate to the seriousness of the offence and tailored to the individual offender. In applying these principles, the court concluded that while the sentence was undoubtedly substantial, it was not manifestly excessive in the circumstances of this case.

After carefully considering the arguments and evidence presented, the court found that the sentence imposed was not manifestly excessive. The court emphasised the importance of the early guilty plea discount in reducing the overall sentence, and the need to ensure that the sentence achieved the appropriate balance between punishment, deterrence, and rehabilitation. The court was satisfied that the sentence imposed achieved these objectives and was therefore not manifestly excessive. The appeal against sentence was dismissed, and the original sentence was upheld.

Orders