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
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…
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- Case
- [2025] WASC 18
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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