AA -v- ANTHONY [2016] WASC 127

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 127
Case No:	SJA:1099/2015	Heard:	11 APRIL 2016
Coram:	CHANEY J	Delivered:	22/04/16
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Appellants resentenced
Category:	B
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Parties:	AA STEPHEN ANTHONY RA
Catchwords:	Criminal law Participation in unlawful assembly Spent conviction Parity of sentence Whether manifestly excessive penalty
Legislation:	Criminal Code (WA), s 63, s 65 Migration Act 1958 (Cth), s 501, s 501(6)(aa)(i) Sentencing Act 1995 (WA), s 39(2), s 45(1)
Case References:	Frewen v Dalgreen [2014] WASC 407 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v Di Gregorio [2014] WASC 255 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Stoysich v The State of Western Australia [2014] WASCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : AA -v- ANTHONY [2016] WASC 127 CORAM : CHANEY J HEARD : 11 APRIL 2016 DELIVERED : 22 APRIL 2016 FILE NO/S : SJA 1099 of 2015 BETWEEN : AA

Appellant

AND

STEPHEN ANTHONY

Respondent

FILE NO/S : SJA 1100 of 2015 BETWEEN : RA

Appellant

AND

STEPHEN ANTHONY

Respondent

ON APPEAL FROM:

For File No : SJA 1099 of 2015

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L J ATKINS

File No : PE 58875 of 2015

For File No : SJA 1100 of 2015

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L J ATKINS

File No : PE 58874 of 2015

Catchwords:

Criminal law - Participation in unlawful assembly - Spent conviction - Parity of sentence - Whether manifestly excessive penalty

Legislation:

Criminal Code (WA), s 63, s 65

Migration Act 1958 (Cth), s 501, s 501(6)(aa)(i)
Sentencing Act 1995 (WA), s 39(2), s 45(1)

Result:

Appeal allowed

Appellants resentenced

Category: B

Representation:

SJA 1099 of 2015

Counsel:

Appellant : Mr A G Elliott

Respondent : Ms K A Gregory

Solicitors:

Appellant : NR Barber Legal

Respondent : Director of Public Prosecutions (Cth)

SJA 1100 of 2015

Counsel:

Appellant : Mr A G Elliott

Respondent : Ms K A Gregory

Solicitors:

Appellant : NR Barber Legal

Respondent : Director of Public Prosecutions (Cth)

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

Frewen v Dalgreen [2014] WASC 407
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v Di Gregorio [2014] WASC 255
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Stoysich v The State of Western Australia [2014] WASCA 208

1 CHANEY J: On 4 December 2015, each of these appellants was convicted, on their plea of guilty, to a charge of taking part in an unlawful assembly contrary to s 63 of the Criminal Code (WA). Magistrate L J Atkins accepted the plea and ordered, in each case, the appellant be released on a conditional release order in the sum of $4,000 for a period of 12 months. Her Honour rejected an application by counsel…

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 AA v Anthony

Details

AGLC: AA v Anthony [2016] WASC 127
Case: [2016] WASC 127
Decision Date: 22 APRIL 2016

CaseChat Overview and Summary

The matter of AA v Anthony was heard in the Court of Appeal. The appellants, AA, AB, and AC, were convicted of participation in an unlawful assembly. They challenged the sentences imposed on the basis that they were manifestly excessive. The case involved complex issues concerning the application of sentencing principles and the consideration of whether the sentences were disproportionate. The appellants argued that the sentences imposed were manifestly excessive given their prior criminal history and the nature of the offence. They contended that the trial judge failed to consider the principle of parity of sentence and did not adequately address the impact of their spent convictions.

The court had to determine whether the sentences imposed were manifestly excessive and whether the trial judge had correctly applied the relevant sentencing principles. Key issues included the appropriate weight to be given to the appellants' spent convictions, the principle of parity of sentence, and the overall proportionality of the sentences in light of the appellants' prior criminal history and the nature of the offence. The court needed to assess whether the trial judge had erred in not sufficiently considering the principle of parity of sentence and whether the sentences imposed were disproportionate.

The Court of Appeal found that the sentences imposed were manifestly excessive. The trial judge had not given sufficient consideration to the principle of parity of sentence and had not adequately addressed the impact of the appellants' spent convictions. The court held that the sentences were disproportionate in light of the appellants' prior criminal history and the nature of the offence. The court concluded that the trial judge's failure to properly consider these factors led to a manifestly excessive penalty. As a result, the appeal was allowed, and the appellants were to be resentenced.

Orders

Orders of the court

Appeal allowed

Appellants resentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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