Billington v Depetro

Case [2018] WASC 171


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BILLINGTON -v- DEPETRO [2018] WASC 171

CORAM:   FIANNACA J

HEARD:   1 MAY 2018

DELIVERED          :   11 JUNE 2018

FILE NO/S:   SJA 1001 of 2018

BETWEEN:   JOSHUA ROBERT BILLINGTON

Appellant

AND

GIULLO JULIUS DEPETRO

Respondent


Catchwords:

Appeal against sentence - Magistrates Court - Manifest excess - 'One-punch' - Consideration of partially suspended sentence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment Act 2016 (WA)
Sentencing Regulations 1996 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr T Percy QC
Respondent : Mr B Murray

Solicitors:

Appellant : DG Price & Co
Respondent : Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285

Ali v The State of Western Australia [2013] WASCA 55

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Cake v McDonald [2017] WASC 87

Chan v The Queen (1989) 38 A Crim R 337

Clarke v The State of Western Australia [No 2] [2013] WASCA 197

Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194

Collins v The State of Westerrn Australia [2007] WASCA 108

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Einfeld v The Queen [2010] NSWCCA 87

Eric v Bull [2014] WASC 342; Cake v McDonald [2017] WASC 87

Fogg v The State of Western Australia [2011] WASCA 11

Griffiths v Procopis [2012] WASC 40

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hine v The State of  Western Australia [2010] WASCA  216

Holden v The State of Western Australia [2009] WASCA 50

Hooper v The Queen [2003] WASCA 179

House v The King [1936] HCA 40; 55 CLR 499

JTP v The State of Western Australia [2010] WASCA 191

Kennedy v The State of Western Australia [2017] WASC 156

Kenny v The Queen [2010] NSWCCA 6

Lowndes v The Queen (1999) 185 CLR 665

Mack v The State of Western Australia [2014] WASCA 207

Markarian v The Queen (2005) 228 CLR 257

McCoombe v The State of Western Australia [2016] WASCA 227

Ngo v The Queen [2017] WASCA

Powell v Tickner [2010] WASCA 224

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scolaro v Shephard [No 2] [2010] WASC 271

Skipworth v The State of Western Australia [2008] WASCA 64

Spirovski v The State of Western Australia [2017] WASCA 230

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Johnson [2010] WASCA 187

TL (a child) v The State of Western Australia [2005] WASCA 173

Wiltshire v Mafi [2010] WASCA 111; (2010) 111 A Crim R 326

Table of Contents

Nature and grounds of the appeal

The law applicable to this appeal

The factual…

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Billington v Depetro [2018] WASC 171
Case
[2018] WASC 171
Decision Date

CaseChat Overview and Summary

In the matter of Billington v Depetro, the appellant sought an appeal against his sentence imposed by the Magistrates Court, arguing that the sentence was manifestly excessive. The case involved a conviction for a one-punch assault, where the appellant was sentenced to a partially suspended sentence. The appellant's primary contention was that the sentence imposed was not appropriate and was manifestly excessive, thus warranting an appeal.

The court was tasked with determining whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the appeal should be upheld on the grounds of manifest excess. Additionally, the court needed to consider whether the Magistrates Court had properly exercised its sentencing discretion under the Sentencing Act and whether the principle of appellate deference to the sentencing court's discretion should apply.

The court examined the principle of appellate deference to the sentencing court's discretion, as articulated in Scolaro v Shephard, where Martin CJ emphasised the importance of not substituting the appellate court's opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion differently. The court acknowledged that manifest excess will not be established merely because the appellate court would have imposed a different sentence. The court also considered the Magistrates Court's role in passing sentence and its capacity to identify trends in offending behaviour and impose sentences that protect the community. In light of these considerations, the court concluded that the Magistrates Court had properly exercised its sentencing discretion and that the sentence imposed was not manifestly excessive.

Accordingly, the appeal against the sentence was dismissed, affirming the Magistrates Court's decision and upholding the principle of appellate deference to the sentencing court's discretion. The court's ruling underscored the importance of maintaining the integrity of the sentencing process and respecting the sentencing court's authority in imposing appropriate sentences.

Orders

Orders of the court

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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

The sentencing discretion conferred on a judicial officer under the Sentencing Act falls into the first category referred to by the plurality in Coal and Allied Operations. The importance of according proper weight to the sentencing court's discretion was discussed by Martin CJ in Scolaro v Shephard:[97] The principle that a court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion is a principle of the utmost importance to the administration of criminal justice (see Lowndes v The Queen [1999] HCA 29; 195 CLR 665; House v The King [1936] HCA 40; 55 CLR 499). It is a principle which should not be diminished or devalued by over-enthusiastic appellate intervention in the sentencing process. Any erosion of that principle erodes the integrity of our systems for the administration of justice, and would convert sentences imposed at first instance to a kind of provisional sentence until confirmed on appeal. The public interest in the finality of the sentencing process requires that appellate intervention be limited to demonstrated cases of error and not extend to differences of opinion within a range of sentences reasonably open. This is, of course, not to say that a sentence which is manifestly excessive may not demonstrate error, but it is to acknowledge the long-established principle that manifest excess will not be established merely because an appellate court would have imposed a different sentence.I respectfully agree. [97] Scolaro v Shephard [2010] WASC 271 [200]. His Honour went on to note that the lower courts of this State are charged with the responsibility of passing sentence in the vast majority of the cases coming before the criminal courts of this State.[98] His Honour referred to relevant statistics and compared the relative number of cases in the superior courts, noting of course that the penalties imposed in the superior courts are for more serious offences. His Honour then made the following comments with which I respectfully agree:[99]However, these observations reinforce the public interest in the appellate function of this court being exercised with due respect and deference to the decisions of judicial officers who are charged with the responsibility of passing sentence in the large number of cases with which they deal on a daily basis. Magistrates in particular are well placed to identify trends in offending behaviour, and to impose sentences which best protect the community having regard to those emerging trends, given the large volumes of cases with which they deal.[98] Scolaro v Shephard [2010] WASC 271 [201].[99] Scolaro v Shephard [2010] WASC 271 [202]. Scolaro involved an unlawful wounding in which a glass had been used. Martin CJ considered the seriousness and prevalence of such offending to be significant in determining what would ordinarily be an appropriate sentence.