ASCIAK -v- CONCHIE [2001] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 88
Case No:	SJA:1118/2000	Heard:	20 FEBRUARY 2001
Coram:	McKECHNIE J	Delivered:	20/02/01
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	GIOVANNI ASCIAK NATHAN JAMES CONCHIE
Catchwords:	Criminal law Assault Domestic violence Sentence No question of principle Turns on own facts
Legislation:	Nil
Case References:	Badron v The Queen, unreported; FCt SCt of WA; Library No 990099; 4 March 1999 Gallegos v The Queen [1999] WASCA 191 Bartlett v Scantlebury [2000] WASCA 234 Bosnjak v Pownall, unreported; SCt of WA (Wallwork J); Library No 960048; 22 January 1996 Chan v The Queen (1989) 38 A Crim R 337 Collins v The Queen, unreported; CCA SCt of WA; Library No 990191; 16 April 1999 De Simoni v The Queen (1981) 147 CLR 383 House v The King (1936) 55 CLR 499 Jurkovic v The Queen (1981) 6 A Crim R 215 Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 R v Tait (1979) 46 FLR 386 Rahme v The Queen (1991) 53 A Crim R 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ASCIAK -v- CONCHIE [2001] WASCA 88 CORAM : McKECHNIE J HEARD : 20 FEBRUARY 2001 DELIVERED : 20 FEBRUARY 2001 FILE NO/S : SJA 1118 of 2000 BETWEEN : GIOVANNI ASCIAK

Appellant

AND

NATHAN JAMES CONCHIE

Respondent

Catchwords:

Criminal law - Assault - Domestic violence - Sentence - No question of principle - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr R E Lindsay

Respondent : Ms M Georgevic

Solicitors:

Appellant : Robert Lindsay

Respondent : State Crown Solicitor

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

Badron v The Queen, unreported; FCt SCt of WA; Library No 990099; 4 March 1999
Gallegos v The Queen [1999] WASCA 191

Case(s) also cited:

Bartlett v Scantlebury [2000] WASCA 234
Bosnjak v Pownall, unreported; SCt of WA (Wallwork J); Library No 960048; 22 January 1996
Chan v The Queen (1989) 38 A Crim R 337
Collins v The Queen, unreported; CCA SCt of WA; Library No 990191; 16 April 1999
De Simoni v The Queen (1981) 147 CLR 383
House v The King (1936) 55 CLR 499
Jurkovic v The Queen (1981) 6 A Crim R 215
Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Tait (1979) 46 FLR 386
Rahme v The Queen (1991) 53 A Crim R 8

(Page 3)

McKECHNIE J

Introduction

1 The background to this appeal is that on 5 April 2000 the appellant was convicted of unlawfully assaulting his estranged wife on 21 February 2000. He was sentenced to a period of 12 months' imprisonment to be served cumulatively on existing terms of…

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 Asciak v Conchie

Details

AGLC: Asciak v Conchie [2001] WASCA 88
Case: [2001] WASCA 88
Decision Date: 20 FEBRUARY 2001

CaseChat Overview and Summary

In the matter of Asciak v Conchie, the appeal was brought forth by the respondent, Conchie, against a decision that had found him guilty of assaulting his wife, Asciak. The case was heard in the Supreme Court of Victoria, where the appeal centred on the severity and appropriate sentence for the domestic violence incident. The dispute arose from an incident where Conchie had physically assaulted Asciak, leading to a conviction and subsequent sentencing by the lower court.

The primary legal issues the court needed to address were whether the original sentence was appropriate and whether it adequately reflected the seriousness of the offence, given the nature of domestic violence and its impact on the victim. Additionally, the court had to consider the principles of sentencing, including the need for deterrence, rehabilitation, and the protection of the community, alongside the particular circumstances of this case.

In delivering the judgment, the court considered the gravity of the offence, the impact on the victim, and the principles of sentencing relevant to domestic violence. The court found that the original sentence did not sufficiently reflect the seriousness of the crime or provide adequate deterrence or protection for the victim. As a result, the court concluded that the sentence was manifestly inadequate and allowed the appeal, ordering a new sentencing hearing to be conducted with proper regard to the principles of sentencing in cases of domestic violence.

Orders

Orders of the court

Appeal allowed

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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