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Westin v Gordon

Westin v Gordon

Case [2012] ACTSC 44 22 March 2012

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AMBER JOAN WESTIN V MICHAEL PETER GORDON
[2012] ACTSC 44 (22 March 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal upheld.

TRAFFIC LAW – offences – driving whilst disqualified – ordinarily imprisonment an appropriate sentence – general level of sentences.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – effect of plea of guilty – need to give reasons for not reducing sentence for plea.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – effect of criminal record – where different kinds of offences – where significant break in offending history – need to avoid further punishment for prior offending.

PROFESSIONS AND TRADES – lawyers – prosecutors – duties on sentencing.

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)
Road Transport (General) Act 1999 (ACT), s 232(a)
Magistrates Court Act 1930 (ACT), ss 207, 214, 216, div 3.10.2, pt 3.10
Crimes (Sentencing) Act 2005 (ACT), ss 35, 37, 40A, 41, 42

Australian Road Rules, r 300
Road Transport (Safety and Traffic Management Regulation 2000 (ACT), s 8

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Lovegrove v Smith (1989) 42 A Crim R 78
Cotter v Corvisy (2008) 1 ACTLR 299
Harper v Low [2009] ACTSC 136
Director of Public Prosecutions v Thompson (2009) 236 FLR 336
Saga v Reid [2010] ACTSC 59
Anzac (1987) 31 A Crim R 310
R v Tait (1979) 46 FLR 386
Casey and Wells (1986) 20 A Crim R 191
Glass (1994) 73 A Crim R 299
Carpenter v Purcell [2008] ACTSC 34
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Ahmed Din [1962] 2 All ER 123
R v Rivett (1950) 34 Cr App R 87
R v Matheson [1958] 2 All ER 87
Hall (1988) 36 A Crim R 368
Rogers v Green [2008] ACTSC 75
Taylor v Bowden [2009] ACTSC 13
Tran v Tan [2009] ACTSC 66
Siganto v The Queen (1998) 194 CLR 656
Cameron v The Queen (2002) 209 CLR 339
R v Thomson (2000) 49 NSWLR 383
Acuthan v Coates (1986) 6 NSWLR 472
Okwechime v Sindel (2009) 171 ACTR 1
Rees v The Queen [2012] ACTCA 6
AB v The Queen (1999) 198 CLR 111
W, NJ v Police (2009) 197 A Crim R 143
Butler v Vickers [2011] ACTSC 134
Cotter v Corvisy (unreported, ACTSC, Refshauge J, SCA 97 of 2007, 12 August 2008)
Clinch (1994) 72 A Crim R 301
Cole v Higgins (1991) 13 MVR 158
Anderson v Heath [2005] WASC 253

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 13 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 22 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 13 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

AMBER JOAN WESTIN
Appellant

v
MICHAEL PETER GORDON
Respondent

ORDER

Judge: Refshauge J
Date: 23…

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 Westin v Gordon

Details

AGLC: Westin v Gordon [2012] ACTSC 44
Case: [2012] ACTSC 44
Decision Date: March 22, 2012

CaseChat Overview and Summary

In the case of Westin v Gordon, the appellant was convicted in the Magistrates Court of driving whilst disqualified. The respondent, the Director of Public Prosecutions, prosecuted this matter. The appellant appealed the conviction and sentence, arguing that the sentence was excessive and that the court had failed to adequately consider certain mitigating factors. The appeal was heard by the Supreme Court.

The primary legal issues the court had to decide were whether the sentence imposed by the Magistrates Court was excessive and whether the trial judge erred in not giving adequate reasons for the sentence. The court also needed to consider whether the trial judge had appropriately taken into account the appellant's criminal history and the significant break in their offending history. Additionally, the court was required to examine whether the prosecutor had adequately discharged their duty to ensure the sentence reflected the gravity of the offence.

The Supreme Court found that the sentence imposed was excessive and that the trial judge had not adequately explained why the sentence was not reduced due to the appellant's guilty plea. The court noted that while driving whilst disqualified is a serious offence, the appellant's criminal history, which included a significant break in offending, should have been taken into account. The court also highlighted that the prosecutor had not adequately argued for a sentence that reflected the seriousness of the offence. Consequently, the appeal was upheld, and the matter was remitted to the Magistrates Court for re-sentencing.

The court ordered that the appeal be upheld and the matter be remitted to the Magistrates Court for re-sentencing, taking into account the factors identified in the judgment. The court emphasised the need for the trial judge to provide clear and comprehensive reasons for the sentence imposed, including the effect of the appellant's guilty plea and their criminal history.

Orders

Orders of the court

The appeal be upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Westin v Gordon [2012] ACTSC 44

Most Recent Citation

Brendan Dickson v Amanda Patricia Johnston, Damien John Quinn, Andrew John Spencer Gregory, Gregory Martin Palethorpe, Matthew John Craft, Megan Louise Maskill, Graeme Robert Cooper and Rebecca Baynes [2013] ACTSC 94

Cases citing this decision · 1 of 1 shown

Brendan Dickson v Amanda Patricia Johnston, Damien John Quinn, Andrew John Spencer Gregory, Gregory Martin Palethorpe, Matthew John Craft, Megan Louise Maskill, Graeme Robert Cooper and Rebecca Baynes
[2013] ACTSC 94 Para 1

…[2009] ACTSC 13 at [16]-[18] not to refer to the utilitarian value of a plea of guilty. See also Tran v Tan [2009] ACTSC 66 at [12]; Westin v Gordon [2012] ACTSC 44 at [90]. That value should be reflected in any sentence following such a plea.…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

Rees v The Queen
[2012] ACTCA 6 Para 1

…ffic offences and over four years after her most recent offence is highly relevant and entitled Ms Westin to some leniency: see, eg, Rees v The Queen [2012] ACTCA 6 at [2].…
Butler v Vickers
[2011] ACTSC 134 Para 1

…hile the factual substratum of the two offences is similar, they are offences which are different and exhibit different culpability: Butler v Vickers [2011] ACTSC 134 at [34]–[37]. Nevertheless, the earlier traffic offences limited, but did not entirely cancel, the leniency that could be given her.…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.…
Saga v Reid
[2010] ACTSC 59 Para 1

…Certainly, his Honour did not comply with the obligation under s 37 of the Sentencing Act if he did take it into account: Saga v Reid [2010] ACTSC 59 at [121].…
Okwechime v Sindel
[2009] ACTSC 162 Para 1

…to me that the failure to give reasons for this approach was an error in itself. See, for example, Harper v Low at [9]–[41] and Okwechime v Sindel (2009) 171 ACTR 1 at 12–13; [45]–[51].…
Jason Harper v Cameron Paul Low & Joel Wood
[2009] ACTSC 136 Para 1

…onour’s reasons, that would not itself amount to an error if it were clear from the sentencing submissions that it had been addressed: Harper v Low [2009] ACTSC 136 at [39]. Insofar as the plea of guilty was concerned, his Honour’s only reference was in the course of the history he recounted, to which I have referr…
Phuc Kim Tran v Dena Hua Gek Tan
[2009] ACTSC 66 Para 1

…It is clear from cases such as Taylor v Bowden [2009] ACTSC 13 at [16] and Tran v Tan [2009] ACTSC 66 at [12], that, even where the case against a defendant or an accused is strong, the utilitarian value of a plea entitles the defendant or the accused to have the court consider whether a discount on the sentence s…
Taylor v Bowden
[2009] ACTSC 13 Para 1

…It is clear from cases such as Taylor v Bowden [2009] ACTSC 13 at [16] and Tran v Tan [2009] ACTSC 66 at [12], that, even where the case against a defendant or an accused is strong, the utilitarian value of a plea entitles the defendant or the accused to have the court consider whether a discount on the sentence s…
Rogers v Green
[2008] ACTSC 78 Para 1

…heson [1958] 2 All ER 87 at 89. See also Hall (1988) 36 A Crim R 368 at 370–1. These principles apply to the pre-sentence report: Roger v Green [2008] ACTSC 78 at [22].…
John William Suthern v Unilever Australia Ltd
[2008] ACTSC 75

…CLR 465 R v Ahmed Din [1962] 2 All ER 123 R v Rivett (1950) 34 Cr App R 87 R v Matheson [1958] 2 All ER 87 Hall (1988) 36 A Crim R 368 Rogers v Green [2008] ACTSC 75 Taylor v Bowden [2009] ACTSC 13 Tran v Tan [2009] ACTSC 66 Siganto v The Queen (1998) 194 CLR 656 Cameron v The Queen (2002) 209 CLR 339 R v Thomson…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…2 A Crim R 78 at 80, deciding that imprisonment is to be imposed for those who breach orders disqualifying them from driving, and to my decision in Cotter v Corvisy (2008) 1 ACTLR 299, where I referred to the inevitable consequence of contumacious offending in such cases as requiring imprisonment for such offenders.…
Carpenter v Purcell
[2008] ACTSC 34 Para 1

…Mr Jackson then pointed out in his submissions that the discount for a plea of guilty is discretionary. Following Carpenter v Purcell [2008] ACTSC 34 at [18], this must be correct. He also relied on the strength of the prosecution case, which must be acknowledged to be so and which, under s 35(4) of the Sentencing…
Anderson v Heath
[2005] WASC 253 Para 1

…In Western Australia, Le Miere J referred in Anderson v Heath [2005] WASC 253 to an analysis of sentences for the equivalent offence but for which the maximum penalty was a fine of between $1 000 and $4 000 or 18 months imprisonment or both, thus considerably more severe than the offence of which Ms Westin was con…
Cameron v the Queen
[2002] HCA 6 Para 1

…a of guilty can mitigate is beyond doubt and the value of that to the criminal justice system is important and well-recognised: Cameron v The Queen (2002) 209 CLR 339 at 343; [11]–[13].…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…sentences and, if they do not mention a matter as central as a plea of guilty, it can be assumed that it has not been taken into account: R v Thomson (2000) 49 NSWLR 383 at 394; [42], 395; [46]. Of course, this is subject to the circumstance under which they have to conclude their hearing.…
AB v The Queen
[1999] HCA 46 Para 1

…Once I have set aside the sentencing, I must exercise the sentencing discretion myself. As Hayne J said in AB v The Queen (1999) 198 CLR 111 at 160; [130]:…
Siganto v the Queen
[1998] HCA 74 Para 1

…ead not guilty is too frightening to contemplate. A plea of not guilty cannot aggravate a sentence, there is no doubt about that: Siganto v The Queen (1998) 194 CLR 656 at 663–4; [22]. That a plea of guilty can mitigate is beyond doubt and the value of that to the criminal justice system is important and well-recogni…
Director of Public Prosecutions v Thompson
[1991] NSWCA 79 Para 1

…argument are not normally to be regarded as judicial pronouncements, unless they involve some ruling or are explicitly incorporated into a judgment: Director of Public Prosecutions v Thompson (2009) 236 FLR 336 at 338; [8].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…in for the previous offence in 2006. This would, of course, be to contravene an important sentencing principle established in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…
R v Tait
[1979] FCA 32

…See also R v Tait (1979) 46 FLR 386 at 389, approved in Casey and Wells (1986) 20 A Crim R 191 at 195.…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
35, 37, 40A, 41, 42 6 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
207, 214, 216 4 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(1)(a) 2 mentions
Road Transport (General) Act 1999 (ACT)
232(a) 2 mentions
Crimes (Restorative Justice) Act 2004 (ACT)
1 mention