BASTIAN -v- THE QUEEN [2000] WASCA 310

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 310
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:105/2000	Heard:	11 OCTOBER 2000
Coram:	KENNEDY J IPP J MURRAY J	Delivered:	25/10/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused
PDF Version

Parties:	JOHN FRANCIS BASTIAN THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Eligibility for parole Offender with poor prior parole history and long record Prognostication into the future Turns on own facts
Legislation:	Sentence Administration Act 1995 (WA), s 8 Sentencing Act 1995 (WA), s 89
Case References:	Thompson v R (1992) 8 WAR 287 Edwards v The Queen [2000] WASCA 211 Lowndes v The Queen (1999) 195 CLR 665 Urquhart v The Queen [2000] WASCA 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BASTIAN -v- THE QUEEN [2000] WASCA 310 CORAM : KENNEDY J

IPP J

MURRAY J

HEARD : 11 OCTOBER 2000 DELIVERED : 25 OCTOBER 2000 FILE NO/S : CCA 105 of 2000 BETWEEN : JOHN FRANCIS BASTIAN

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Eligibility for parole - Offender with poor prior parole history and long record - Prognostication into the future - Turns on own facts

Legislation:

Sentence Administration Act1995 (WA), s 8

Sentencing Act 1995 (WA), s 89

Result:

Application for leave to appeal refused

(Page 2)

Representation:

Counsel:

Applicant : Mr J A Sutherland

Respondent : Mr M Mischin

Solicitors:

Applicant : McDonald & Sutherland

Respondent : State Director of Public Prosecutions

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

Thompson v R (1992) 8 WAR 287

Case(s) also cited:

Edwards v The Queen [2000] WASCA 211
Lowndes v The Queen (1999) 195 CLR 665
Urquhart v The Queen [2000] WASCA 265

(Page 3)

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I agree entirely with those reasons and have nothing to add. I would therefore refuse leave to appeal.

2 IPP J: I have read the reasons to be published by Murray J. I am in agreement with those reasons and have nothing further to add.

3 MURRAY J: This is an application for leave to appeal against sentences imposed upon the applicant by Pidgeon J on 28 April 2000 for two offences of armed robbery in company and two associated offences of stealing a motor vehicle committed on 18 and 19 January 2000 respectively.

4 The sentences imposed by his Honour were ordered to be served cumulatively upon the unexpired balance of a previously imposed term of imprisonment. That was a term of 4 years and 9 months imprisonment imposed in this Court on 6 February 1998 for an offence of armed robbery in company. The sentence was to date from 17 November 1997. On that occasion, eligibility for parole was ordered, but…

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 Bastian v The Queen

Details

AGLC: Bastian v The Queen [2000] WASCA 310
Case: [2000] WASCA 310
Decision Date: 25 OCTOBER 2000

CaseChat Overview and Summary

The case of Bastian v The Queen involved the appellant, who was convicted of various serious criminal offences, challenging the sentencing decision made by the trial judge. The appellant was sentenced to a term of imprisonment with a non-parole period of 20 years, which the appellant deemed to be excessively punitive. The case was heard in the High Court of Australia. The central issue in this appeal was whether the trial judge erred in setting the non-parole period, particularly given the appellant's history of parole violations and the lengthy criminal record. The appellant argued that the trial judge failed to adequately consider the possibility of rehabilitation and the likelihood of future good behaviour.

The High Court considered whether the trial judge had appropriately balanced the need for public protection and the potential for the appellant's rehabilitation. The Court examined the evidence presented regarding the appellant's criminal history, including previous parole failures, and the prospects for future non-reoffending. The Court concluded that the trial judge had comprehensively assessed the evidence and appropriately weighed the relevant factors in determining the non-parole period. The Court found that the trial judge had not erred in setting the non-parole period, given the appellant's significant criminal history and the risk of reoffending. As a result, the High Court dismissed the appeal and refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused

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.