Legal Research
Cases
Abbott v The Queen

Abbott v The Queen

Case [2019] WASCA 90 28 June 2019

Appeal

Aggravated armed robbery

Breaking and entering

Unlawful use of motor vehicle

Receiving stolen firearm

Escape from legal custody

Sentencing

Constitutional Validity

Criminal Law

Type to search within this case.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ABBOTT -v- THE QUEEN [2019] WASCA 90
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   18 FEBRUARY 2019
DELIVERED          :   28 JUNE 2019
FILE NO/S:   CACR 111 of 2018
BETWEEN:   BRENDEN JAMES ABBOTT
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
File Number             :   INS 142 of 1987

Catchwords:

Criminal law - Appeal against sentence - Conviction after trial - Aggravated armed robbery - Breaking and entering - Unlawful use of motor vehicle - Receiving stolen firearm - Escape from legal custody in Western Australia - Multiple armed robbery offences committed in Queensland - Escape from legal custody in Queensland - Applications for prisoner transfer from Queensland to Western Australia - Over 20 years' imprisonment served in Queensland - Alleged implied error - 'Retrospective totality' - Whether the total effective sentence was crushing having regard to events subsequent to imposition - Whether s 41(4)(a) of the Criminal Appeals Act 2004 (WA) empowers the court to interfere with a sentence based on events occurring after the sentence was imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e), s 41(4)(a)
Criminal Code (WA), s 390A, s 391, s 393, s 404, s 414
Sentence Administration Act 2003 (WA), s 8
Sentencing Act 1995 (WA), s 6(3)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms N Cavallaro
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	The Director of Public Prosecutions (WA)

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

Abbott v The Queen (Unreported, Western Australian Supreme Court, Court of Criminal Appeal, Library No 7814, 1 September 1989)
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
JKL v The State of Western Australia [2012] WASCA 215
LAT v The State of Western Australia [2018] WASCA 215
LWD v The State of Western Australia [2017] WASCA 174
MacCauley v The State of Western Australia [No 2] [2017] WASCA 65
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Abbott (Unreported, Queensland Supreme Court, Court of Appeal, 13 April 1999)
R v Clements (1993) 68 A Crim R 167
R v Friedemann [1998] VSCA 9; [1999] 1 VR 162
R v Pollitt (1986) 20 A Crim R 102
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Woods v The State of Western Australia [2017] WASCA 179

JUDGMENT OF THE COURT:

The appellant was charged and convicted after trial in the Supreme Court of Western Australia of four counts contained in indictment 142 of 1987, being:[1]
[1] WAB 201 - 203.

Count 1

Receiving a quantity of firearms…

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 Abbott v The Queen

Details

AGLC: Abbott v The Queen [2019] WASCA 90
Case: [2019] WASCA 90
Decision Date: 28 JUNE 2019

CaseChat Overview and Summary

The case of Abbott v The Queen involved the appellant, Abbott, who appealed against his sentence for multiple serious offences, including aggravated armed robbery, breaking and entering, unlawful use of a motor vehicle, and receiving a stolen firearm. The offences were committed in Queensland, and Abbott had already served over 20 years of his sentence in Queensland prisons. The appeal was heard by the Western Australian Court of Appeal, which was required to determine whether there was an alleged implied error in the sentencing process, specifically whether the 'retrospective totality' principle could be applied to adjust the sentence based on events that occurred after it was initially imposed.

The central legal issue was whether the court had the authority to alter the sentence based on subsequent events, particularly whether section 41(4)(a) of the Criminal Appeals Act 2004 (WA) permitted the court to consider events post-sentencing. The court examined whether the total effective sentence was crushing when taking into account the lengthy period Abbott had already spent in custody. The appellant argued that the sentence was disproportionately severe given his long incarceration, while the respondent, the Crown, contended that the court lacked the power to modify the sentence based on post-sentencing events.

In its decision, the court determined that it did not have the authority to adjust the sentence based on events occurring after its imposition. The court found that section 41(4)(a) of the Criminal Appeals Act 2004 (WA) did not empower the court to interfere with a sentence in light of subsequent events. The appeal was dismissed, and the original sentence was upheld. The court held that the sentencing judge had properly considered all relevant factors at the time of sentencing and that the appellant's lengthy incarceration in Queensland did not constitute an implied error warranting a reduction in sentence.

The court's final orders confirmed the dismissal of the appeal and maintained the original sentence imposed by the trial judge. The lengthy incarceration in Queensland was recognised, but the court was not permitted to alter the sentence based on post-sentencing events. The appellant's argument that the total effective sentence was crushing was not accepted, as the court held firm to the principle that it could not modify sentences in light of subsequent events.

Orders