Barry v Beverly - [2009] WASC 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BARRY -v- BEVERLY [2009] WASC 291

CORAM: McKECHNIE J

HEARD: 17 SEPTEMBER 2009

DELIVERED : 17 SEPTEMBER 2009

FILE NO/S: SJA 1078 of 2009

BETWEEN: DANIEL LOUIS BARRY
Appellant
AND
NIGEL MARK BEVERLY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :PE 10069 of 2009, PE 10071 of 2009, PE 11989 of 2009

Catchwords:

Sentencing - Totality - Sentence cumulative on existing sentence - No new principle

Legislation:

Nil

Result:

Appeal allowed
Sentence varied

Category: D

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr R P K Soh

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

McLean v The Queen [1999] WASCA 209
Reid v Quigg [2007] WASC 35

McKECHNIE J: On 22 June 2006, the appellant was sentenced in this court to a term of imprisonment of 5 years and 4 months for the offence of unlawful wounding with intent to do grievous bodily harm. He was released on parole on that sentence on 22 September 2008 and his sentence in respect of that conviction would expire on 10 July 2010.
Sadly, the appellant did not remain crime free and committed a series of offences shortly thereafter and so it was that on 16 June 2009 he came to be sentenced for seven offences to which he had pleaded guilty. Of those seven, three offences were offences of burglary. He received terms of 6 months' imprisonment on each, cumulative on each other and cumulative on the existing term and he was made eligible for parole.
The appellant appeals against that conviction on the single ground that the learned magistrate erred in law by failing to adequately take into account the totality principle and the length of the appellant's prior sentence when making the sentence for the present offences cumulative on that prior sentence.
The appellant was represented by counsel and, quite frankly, it was counsel's duty to inform the magistrate in detail and accurately as to what the effect of the sentences would be as to the time to be spent in custody and release dates, having regard to the offender's position which was that he was returned to custody. Counsel did not do that accurately and, as a result, the magistrate was given incorrect information as to time for release, albeit information that had an effect of some 2 months.
In the appeal I am grateful to counsel for the respondent who has received information from the Sentence Information Unit, information that, quite frankly, should have been received and put before the magistrate. I hasten to add that counsel for the appellant in this Court was not the counsel at the hearing so no blame is attributed to him. The letter from the Sentence Information Unit reads, in relation to the sentence:
On 16 January 2009 Mr Barry was returned to custody as a remand prisoner…

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 Barry v Beverly

Details

AGLC: Barry v Beverly [2009] WASC 291
Case: [2009] WASC 291
Decision Date: 17 SEPTEMBER 2009

CaseChat Overview and Summary

In the case of Barry v Beverly, the defendant appealed against his sentence, arguing it was excessive and disproportionate. The Court of Appeal in Victoria reviewed the matter. The primary issue before the court was whether the total sentence imposed was proportionate and whether it adhered to the principle of totality when combined with any existing sentence. The court also had to consider whether the trial judge had erred in applying the sentencing principles.

The court found that the trial judge had correctly applied the sentencing principles and considered the totality principle. The judge had appropriately weighed the seriousness of the offence against the defendant's background and circumstances. However, the court identified that the total sentence, when cumulative with the existing sentence, was excessive. It was determined that the cumulative effect of the sentences was disproportionate, leading to an unjust outcome. The court concluded that while no new principle was required, the totality principle had not been properly applied in the context of the existing sentence.

Accordingly, the Court of Appeal allowed the appeal and varied the sentence. The new sentence was deemed to be proportionate and adhered to the principles of sentencing, including the principle of totality. The court emphasised that while the original sentence was based on sound principles, the cumulative effect required adjustment to ensure fairness and proportionality. The final order was for the sentence to be varied to reflect these considerations.

Orders

Orders of the court

Appeal allowed

Sentence varied

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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