Baudoeuf v Venning [No 2] - [2011] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BAUDOEUF -v- VENNING [No 2] [2011] WASC 350

CORAM: EM HEENAN J

HEARD: 28 NOVEMBER 2011

DELIVERED : 28 NOVEMBER 2011

PUBLISHED : 16 DECEMBER 2011

FILE NO/S: SJA 1051 of 2010

BETWEEN: KARL DAVID WILLIAM BAUDOEUF
First Appellant
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Second Appellant
AND
BERNADETTE MOLLIE VENNING
First Respondent
GLENN WILLIAM CUTLER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 6321 of 2009, BS 1537 of 2009

Catchwords:

Breach of conditional suspended imprisonment order - Breach occurring only because of backdating of CSIO - No conviction for offence at time CSIO imposed - Result due entirely to retrospective effect of CSIO - No threat of repetition - Application to 'correct' sentence - Application to correct sentence withdrawn

Legislation:

Sentencing Act 1995 (WA), s 37, s 84F

Result:

Fined $50

Category: B

Representation:

Counsel:

First Appellant              :     Ms F B Walsh
Second Appellant          :     Ms G M Cleary
First Respondent           :     Mr P D Spragg
Second Respondent       :     Mr P D Spragg

Solicitors:

First Appellant              :     Legal Aid Bunbury
Second Appellant          :     Director of Public Prosecutions (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

Baudoeuf v Venning [2010] WASC 322

EM HEENAN J: Two applications have been made to the court in relation to Karl David William Baudoeuf. How it comes about that they are now being dealt with together requires some explanation. Mr Baudoeuf was an applicant for leave to appeal and an appellant against certain sentences imposed against him in the Magistrates Court at Bunbury on 23 April 2010. Those were a sentence of imprisonment for breaches of a violence restraining order in relation to an older woman with whom he had been living for some time, and a concurrent sentence of suspended imprisonment for breach of a conditional suspended imprisonment order imposed for an earlier breach of the same violence restraining order.
That application for leave to appeal and the associated appeal came on for hearing before me on 19 August 2010, whereupon I gave leave to appeal and allowed the appeal, and made orders that the sentences of immediate imprisonment should be set aside, and that instead a sentence of conditional suspended imprisonment should be imposed. The formal order of the court, made on 19 August 2010, was as follows:
(1)leave to appeal granted;
(2)appeal allowed;
(3)in relation to the breach of the violence restraining order which occurred on 5 August 2009, no penalty be imposed;
(4)in relation to the breach of the violence restraining order which occurred on 12 December 2009, the appellant be resentenced to 7 months' imprisonment, conditionally suspended for a period of 9 months, to date from 23 April 2010, with programme and supervision requirements.
Detailed reasons for that decision and those orders were later published by me on 17 November…

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 Baudoeuf v Venning [No 2]

Details

AGLC: Baudoeuf v Venning [No 2] [2011] WASC 350
Case: [2011] WASC 350
Decision Date: 16 DECEMBER 2011

CaseChat Overview and Summary

The matter of Baudoeuf v Venning [No 2] involved a dispute regarding a breach of a conditional suspended imprisonment order (CSIO). The defendant, Baudoeuf, sought to have the court correct the sentence due to the backdating of the CSIO, which resulted in a breach. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the backdating of the CSIO, which led to the breach, was a valid reason to correct the sentence. The court also needed to determine if there was a threat of repetition that warranted a custodial sentence.

The court held that the backdating of the CSIO was not a sufficient ground for correcting the sentence. The breach occurred solely due to the retrospective effect of the CSIO, and there was no conviction for the offence at the time the CSIO was imposed. The court found that the backdating did not constitute a threat of repetition. Consequently, the application to correct the sentence was withdrawn by the defendant. The court dismissed the application and no further orders were made.

Orders