Anderson v Heath

Case [2005] WASC 253


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]…

Continue reading Anderson v Heath

Sign in free to access the full text

Details
AGLC
Anderson v Heath [2005] WASC 253
Case
[2005] WASC 253
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.