Wetton v Lincoln - [2022] WASC 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WETTON -v- LINCOLN [2022] WASC 212
CORAM:   MCGRATH J
HEARD:   23 JUNE 2022
DELIVERED          :   23 JUNE 2022
PUBLISHED           :   24 JUNE 2022
FILE NO/S:   SJA 1014 of 2022
BETWEEN:   ALEXANDRA CLAIRE WETTON
Appellant
AND
DAVID WAYNE LINCOLN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P MALONE
File Number            :   FR 7893 of 2021

Catchwords:

Criminal law - Road traffic offence - Driving under influence of alcohol - Appeal against sentence - Whether fine manifestly excessive - Appeal against length of motor driver's licence disqualification

Legislation:

Criminal Appeals Act 2004 (WA) s 8, s 14(2)
Road Traffic Act 1974 (WA) s 64(1), s 64(2), s 71H
Road Traffic Code 2000 (WA) r 11(3)
Sentencing Act 1995 (WA) s 6, s 9AA

Result:

Leave to the appellant to adduce further evidence on re-sentencing is granted
Leave to appeal is granted on grounds 1 and 2
Leave to appeal is refused on ground 3
Appeal is allowed on grounds 1 and 2
The fine of $2,250 is set aside and in lieu thereof a fine of $1,700 is imposed
The period of disqualification from holding or obtaining a driver's licence for 30 months is set aside and in lieu thereof a period of disqualification of 12 months is imposed commencing 4 November 2021

Representation:

Counsel:

Appellant	:	Mr A G G Smith
Respondent	:	Ms A Y Westerside

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	State Solicitor's Office

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

Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
CE Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144
Crocker v Vinicombe [2019] WASC 416
Del Borrello v The City of Vincent [2019] WASC 300
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; (2000) 74 ALJR 1538; (2000) 175 ALR 315
Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489
Forbes v Durant [1999] WASCA 85
Illich v Campion [2002] WASCA 301
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pavlitsas v Rowe [2013] WASC 233
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Roberts v The State of Western Australia [2014] WASCA 239
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Woods v Webb (1990) 11 MVR 95

MCGRATH J:

The appellant was convicted, upon her own endorsed plea of guilty, of one offence of driving a motor vehicle, with a blood alcohol content exceeding 0.08 grams of alcohol per 100 millilitres of blood, contrary to s 64(1) of the Road Traffic Act 1974 (WA) (the DUI offence)[1] and one offence of exceeding the speed limit, contrary to r 11(3)…

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 Wetton v Lincoln

Details

AGLC: Wetton v Lincoln [2022] WASC 212
Case: [2022] WASC 212
Decision Date

CaseChat Overview and Summary

Alexandra Claire Wetton has appealed against the sentence and disqualification order imposed upon her by the Magistrates Court of Western Australia for driving under the influence of alcohol and exceeding the speed limit. Wetton pleaded guilty to the charges at the first reasonable opportunity. The Magistrates Court imposed a fine of $2,250 and disqualified her from holding or obtaining a driver’s licence for 30 months in respect of the driving under the influence charge. The Magistrates Court imposed a fine of $200 for the speeding offence. Wetton contends that the fine and disqualification period were manifestly excessive. The respondent conceded that the appeal should be allowed on grounds 1 and 2 but did not concede ground 3 of the appeal. I found that the fine and the period of disqualification were manifestly excessive. Accordingly, leave to appeal was granted on grounds 1 and 2 and the appeal was allowed on those grounds. The appeal was dismissed on ground 3. In re-sentencing, I imposed a fine of $1,700 and a period of disqualification of 12 months commencing on 4 November 2021.

Orders