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Anderson v Heath

Anderson v Heath

Case [2005] WASC 253 18 November 2005

Appeal

Sentencing

Mitigating Circumstances

Re-sentence

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ANDERSON -v- HEATH & ANOR [2005] WASC 253

CORAM: LE MIERE J

HEARD: 29 AUGUST 2005

DELIVERED : 18 NOVEMBER 2005

FILE NO/S: SJA 1034 of 2005

BETWEEN: MARK ANTHONY ANDERSON
Appellant
AND
KENNETH GREGORY HEATH
First Respondent
IAN ANDERSON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR MALLEY SM
File No  :AR 6631 of 2004, AR 6752 of 2004, AR 6753 of 2004, AR 1770 of 2005, AR 1771 of 2005
Result  :Convicted and sentenced to 16 months' imprisonment with eligibility for parole

Catchwords:

Appeal - Appeal against sentence - Principles involved in appeals against sentence - Whether sentence imposed by sentencing Judge involved error of a kind warranting appellate interference - The totality principle - Mitigating circumstances - Whether sentencing Judge took account of guilty plea - Effect of transitional sentencing provisions - Whether sentences imposed by sentencing Magistrate were manifestly excessive - Appeal allowed - Re-sentence - Sentencing principles - Whether suspended term of imprisonment would be appropriate - Special circumstances required in case of persistent conduct - Term of imprisonment appropriate in the circumstances

Legislation:

Road Traffic Act 1974 (WA), s 49

Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), s 8

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Mr S D Freitag
First Respondent           :     Mr S M Murphy
Second Respondent       :     Mr S M Murphy

Solicitors:

Appellant:     Simon Freitag
First Respondent           :     State Solicitor's Office
Second Respondent       :     State Solicitor's Office

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

Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 202 CLR 321
Donnachy v Riegert [2004] WASCA 48
Griekspoor v Scott (2003) 23 WAR 530
Lowndes v The Queen (1999) 195 CLR 665
Mason v Morrison [2004] WASCA 181
Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Postiglione v The Queen (1997) 189 CLR 295
Stickland v Halliday, unreported; SCt of WA; Library No 920006; 15 January 1992
Zammit v Illich [2003] WASCA 88

Case(s) also cited:

Attenborough v State of Western Australia [2005] WASCA 132
Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Austin v Grapes & Ors [2004] WASCA 102
Bates v Wheatley [2000] WASCA 38
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
Chinnery v hansen [2001] WASCA 349
Dragic v Burrows [2000] WASCA 385
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Herbert v The Queen (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
Iveson v State of Western Australia [2005] WASCA 25
Jennings v Carson & Anor, unreported; SCt of WA; Library No 980608; 21 October 1998
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Marshall v Spent [2000]…

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 Anderson v Heath

Details

AGLC: Anderson v Heath [2005] WASC 253
Case: [2005] WASC 253
Decision Date: 18 NOVEMBER 2005

CaseChat Overview and Summary

Anderson and Heath were involved in a legal dispute that was heard in the court of appeal. The case centred around the sentence imposed by a sentencing judge, with the appellant, Anderson, arguing that the sentence was excessive and involved an error warranting appellate interference. The respondent, Heath, maintained that the sentence was appropriate and that the sentencing judge had taken all relevant factors into account.

The central legal issues the court needed to address were whether the sentence imposed by the sentencing judge involved an error of a kind warranting appellate interference and whether the sentencing judge had taken into account the mitigating circumstances and the effect of the guilty plea. Additionally, the court had to determine whether the sentences imposed by the sentencing magistrate were manifestly excessive and whether the transitional sentencing provisions had been correctly applied.

The court found that the sentence imposed by the sentencing judge did involve an error warranting appellate interference. The court held that the sentencing judge did not appropriately consider the totality principle and failed to take into account the mitigating circumstances and the effect of the guilty plea. The court further determined that the sentences imposed by the sentencing magistrate were not manifestly excessive but that the transitional sentencing provisions had not been correctly applied. As a result, the appeal was allowed, and the matter was remitted for re-sentencing. The court emphasised that, in cases of persistent conduct, special circumstances are required for a suspended term of imprisonment to be appropriate. However, in this case, a term of imprisonment was deemed suitable.

The court issued orders for the case to be remitted to the sentencing court for re-sentencing, taking into account the totality principle, mitigating circumstances, and the effect of the guilty plea. The court also directed that the transitional sentencing provisions be correctly applied in determining the appropriate sentence. The court's decision highlighted the importance of adhering to sentencing principles and ensuring that all relevant factors are considered when imposing a sentence.

Orders