Whan v McConaghy [1984] HCA 22

High Court of Australia Mason, Murphy, Wilson, Brennan and Deane JJ. Whan v McConaghy [1984] HCA 22

ORDER Application for special leave to appeal granted. Appeal allowed with costs, including the costs of the application for bail. Orders of the Supreme Court of New South Wales Court of Appeal set aside and in lieu thereof order that the summons be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 11 Mason, Murphy, Wilson and Deane JJ.

This is an application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. In order to understand and deal with the submission of the applicant, it is necessary to sketch a chronology of the relevant facts.

On 13 December 1982 in the Court of Petty Sessions at Hornsby, the applicant pleaded guilty to two charges of driving a motor cycle in a manner dangerous to the public. He was convicted, fined a total of $1,250 and disqualified from holding or obtaining any licence to drive a motor vehicle for an effective period of two years.

The applicant appealed to the District Court of New South Wales against the severity of the penalties. The appeal was heard and determined on 9 August 1983. Although the appeal was dismissed, the learned District Court judge varied the orders of the Court of Petty Sessions. In lieu of the fines, he sentenced the applicant to imprisonment for three months on each charge, such terms to run concurrently, and ordered that the imprisonment be served by way of periodic detention pursuant to the Periodic Detention of Prisoners Act 1981 N.S.W. in the Emu Plains Prison Complex. As required by s. 8 of that Act, the order specified a date on which the sentence was to commence, namely, 19 August 1983. The period of disqualification was reduced to an effective period of twelve months.