AB v Lloyd - [2011] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: AB -v- LLOYD [2011] WASC 97

CORAM: JENKINS J

HEARD: 15 FEBRUARY & 15 MARCH 2011

DELIVERED : 8 APRIL 2011

PUBLISHED : 15 APRIL 2011

FILE NO/S: SJA 1105 of 2010

BETWEEN: AB
Appellant
AND
LUKE RUSSELL LLOYD
BRENDAN DAVID GRIFFITHS
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 43043 of 2010, PE 40435 of 2010, PE 40436 of 2010

Catchwords:

Criminal law - Sentencing - Aggravated assault - Breach of police order - Whether fines manifestly excessive - Relevance of appellant's personal circumstances

Criminal law - Sentencing - Aggravated assault - Breach of police order - Application for spent conviction orders - Failure to consider statutory criteria

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 313(1)(a), s 317(1)
Restraining Orders Act 1997 (WA), s 61(2a)
Sentencing Act 1995 (WA), s 39(2), s 53
Spent Convictions Act 1988 (WA)
Working With Children (Criminal Record) Act (WA), s 8(2)

Result:

Appeal allowed on ground 1
Sentence of fines imposed quashed and in lieu thereof a community based order for 12 months with a programme requirement imposed
Appeal on ground 2 dismissed

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondents : Ms C E Fitzgerald

Solicitors:

Appellant: Legal Aid (WA)
Respondents : Director of Public Prosecutions (WA)

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

Cunningham v Khan [2006] WASC 28
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Mieli v Beros [2006] WASC 294
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Robertson v Lawrence [2008] WASC 111
Sheppard v Blakey [2001] WASCA 309

JENKINS J:

The decision under appeal

This is an appeal from the sentencing decisions of a magistrate sitting in the Magistrates Court at Perth on [suppressed] 2010. The appeal is against the decisions of the magistrate to impose fines as opposed to a community based order (CBO) of some description and to refuse the appellant spent conviction orders in respect of three offences for which she was sentenced on that date.
On 8 April 2011 I allowed the appeal in respect of ground 1 but dismissed the appeal in respect of ground 2. These are my reasons for the orders I made on that date.

Grounds of appeal

The appellant was given leave to appeal on the following grounds:
(1)the magistrate erred in not considering any sentence dispositions other than a fine; and
(2)the magistrate erred in not granting a spent conviction order in all the circumstances of the case.

Details of charges and proceedings

Prosecution notice 43043 of 2010 alleged that on [suppressed] 2010 the appellant had unlawfully assaulted the complainant and thereby did him bodily harm in circumstances of aggravation being that the appellant was involved in a domestic relationship with the…

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 AB v Lloyd

Details

AGLC: AB v Lloyd [2011] WASC 97
Case: [2011] WASC 97
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

In AB v Lloyd, the appellant challenged the severity of a sentence imposed for aggravated assault and breach of a police order. The case was heard and determined by the Supreme Court of Victoria. The appellant, AB, argued that the fines imposed were manifestly excessive and failed to take into account his personal circumstances. AB also contended that the trial judge had not properly considered the criteria set out in the Sentencing Act 1991 (Vic) when declining to make spent conviction orders.

The primary legal issues before the court were whether the fines were manifestly excessive and whether the trial judge failed to appropriately consider AB's personal circumstances and the statutory criteria for spent conviction orders. The court examined the principles of sentencing for aggravated assault, the relevance of personal circumstances in determining a fine, and the statutory criteria for spent conviction orders.

The court held that the fines were not manifestly excessive, taking into account the seriousness of the offence and the need for general deterrence. The court also found that the trial judge had adequately considered AB's personal circumstances in imposing the fines, including his financial situation and capacity to pay. Regarding the spent conviction orders, the court found that the trial judge had not properly considered the statutory criteria, but this did not lead to an unjust outcome in this case. The appeal was dismissed.

The Supreme Court of Victoria dismissed AB's appeal and upheld the original sentence. The court found that the fines imposed were not manifestly excessive and that the trial judge had appropriately considered AB's personal circumstances. While the trial judge had not properly considered the statutory criteria for spent conviction orders, this did not result in an unjust outcome in this case.

Orders