Allbeury v WA Police - [2025] WASC 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   ALLBEURY -v- WA POLICE [2025] WASC 18
CORAM:   LEMONIS J
HEARD:   5 SEPTEMBER 2024
DELIVERED          :   28 JANUARY 2025
PUBLISHED           :   28 JANUARY 2025
FILE NO/S:   SJA 1013 of 2024
BETWEEN:   SIMON ALLBEURY
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1013 of 2024
Jurisdiction              :   PERTH MAGISTRATES COURT
Coram:   MAGISTRATE AYLING
File Number            :   PE 34491/2023 and PE 34492/2023

Catchwords:

Appellant convicted of two offences of unlawful assault arising out of an incident at a shopping centre – Appellant appeals against conviction and sentence – Appellant’s principal complaint is that the verdict of guilty was not capable of arising on the evidence and was unreasonable – Consideration of elements of the offences and applicable principles on appeal – Appeal against sentence contends that the learned magistrate improperly took into account the Appellant’s prior spent conviction – Consideration of whether sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Magistrates Court Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	C Madondo

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Charisteas v Charisteas [2021] HCA 29
Gartner v Brennan [2016] WASC 89
Hayman v Cartwright [2018] WASCA 116
Larussa v The State of Western Australia [2023] WASCA 62
Samuels v The State of Western Australia [2005] WASCA 193
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

Introduction

The appellant was convicted by the learned magistrate after trial of two counts of unlawful assault contrary to s 313(1)(b) of the Criminal Code (WA) (Code). The appellant was sentenced to a global fine of $500 for both offences and ordered to pay court costs of $264.30.
The incident the subject of the convictions took place at the Belmont Forum shopping centre.
Two security guards were walking together. The appellant was walking towards the security guards from the opposite direction. The prosecution case against the appellant was that he deliberately walked forcefully between both security guards and made contact with each of them. At trial, the prosecution relied on the evidence of the two security guards and CCTV footage of the incident. The appellant gave evidence at trial to the effect that he walked between the security guards and no contact was made. The learned magistrate rejected this evidence. The learned magistrate was satisfied beyond reasonable doubt on the whole of the evidence the appellant made contact with each guard and thus the appellant assaulted each guard. The learned magistrate was also satisfied beyond reasonable doubt that each assault was unlawful.
By notice of appeal the appellant seeks leave to appeal against conviction and also sentence. The ground of appeal identified is 'unlawful conviction in both fact and law, constitutional rights habeas corpus'. The appeal…

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.

Keep reading for free

Create a free CaseChat account to read Allbeury v WA Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 18
Decision Date: 28 JANUARY 2025

CaseChat Overview and Summary

In the case of Allbeury v WA Police, the appellant was convicted of two offences of unlawful assault which arose from an incident at a shopping centre. The appellant appealed against both the conviction and the sentence, asserting that the verdict of guilty was not capable of arising on the evidence and was unreasonable. Additionally, the appellant argued that the learned magistrate improperly considered a prior spent conviction in determining the sentence, contending that the sentence was manifestly excessive.

The court was tasked with examining the elements of the offences of unlawful assault and the applicable principles governing the appeal process. It was necessary to determine whether the verdict of guilty was supported by the evidence and whether the appeal against the sentence was justified, particularly concerning the consideration of the appellant's prior spent conviction. The court had to assess whether the sentence imposed was manifestly excessive and whether it reflected an error in the judicial process.

The court found that the evidence was sufficient to support the verdict of guilty on the charges of unlawful assault. It was determined that the appellant's argument that the verdict was unreasonable and not supported by the evidence was without merit. In relation to the sentence, the court held that the magistrate did not err in considering the appellant's prior spent conviction, as it was relevant to the overall sentencing process. However, the court found that the sentence was manifestly excessive, and thus ordered a re-sentencing by a different magistrate. This ruling was made to ensure that the sentence appropriately reflected the principles of justice and proportionality.

In conclusion, the appeal against the conviction was dismissed, while the appeal against the sentence was upheld. The court ordered that a different magistrate re-sentence the appellant to ensure the sentence was proportionate and just, taking into account all relevant factors, including the appellant's prior spent conviction.

Orders