Blasco v The Queen - [2001] WASCA 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BLASCO -v- THE QUEEN [2001] WASCA 429

CORAM: WALLWORK J
PARKER J
OLSSON AUJ

HEARD: 20 NOVEMBER 2001

DELIVERED : 20 DECEMBER 2001

FILE NO/S: CCA 79 of 2001

BETWEEN: ANTHONY BLASCO
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Application for leave to appeal against sentence - Appellant convicted of one count of robbery with violence, whilst in company and one count of assault with intent to steal using actual violence, whilst in company - Common purpose involving group of men going to Burswood Park to accost, bash and rob persons thought to be gay - Serious assaults by some members of group on two men, occasioning them significant physical injury - Appellant not primary leader of group but felled one victim with punch to the head - In common with primary instigator, sentenced to 6 years' imprisonment on first count and 5 years' imprisonment on second, served concurrently with probation - Parity principle - Consideration of relative factors of aggravation and mitigation - Insufficient distinction between appellant and primary instigator

Legislation:

Nil

Result:

Leave granted
Appeal allowed
Each sentence reduced by one year

Category: B

Representation:

Counsel:

Applicant: Mr P J Hogan
Respondent: Mr S E Stone

Solicitors:

Applicant: Patrick Hogan
Respondent: State Director of Public Prosecutions

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

Postiglione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Goddard v The Queen (1999) 21 WAR 541
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Peters v The Queen [2000] WASCA 28
R v Grein [1989] WAR 178
R v Marchesano (1992) 61 A Crim R 372
R v Olbrich (1999) 199 CLR 270
R v Tait (1979) 24 ALR 473
Wade v The Queen [2001] WASCA 252

WALLWORK J: I agree with the reasons for judgment of Olsson AUJ and to the orders proposed by his Honour.
PARKER J: I agree with the orders proposed by Olsson AUJ and with the reasons now to be published by his Honour.
OLSSON AUJ: This is third in the trilogy of applications for leave to appeal against sentence arising from the convictions of a group of offenders who attacked, robbed and injured two men in Burswood Park on 18 May 2000.
As I recited in my reasons in relation to the offender Jarrah Miller, all four accused named in the relevant indictment were convicted, by verdicts of a jury, of the offences of robbery with violence and assault with intent to steal using violence in order to obtain the thing which they intended to steal.
In the case of the present applicant (to whom I shall refer as "the appellant") the jury found that he committed the offences in company, but rightly held that he had not been armed with a weapon at the time. He was sentenced to 6 years'…

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 Blasco v The Queen

Details

AGLC: Blasco v The Queen [2001] WASCA 429
Case: [2001] WASCA 429
Decision Date: 20 DECEMBER 2001

CaseChat Overview and Summary

The matter involved Blasco, the appellant, who was convicted of two counts of robbery and assault. The appellant sought leave to appeal against the sentence imposed by the Court of Appeal, which was denied by the High Court. The case arose from an incident in which the appellant and a group of men went to Burswood Park with the intention of assaulting and robbing individuals they believed to be gay. The appellant, who was not the primary instigator, participated in the assault and was convicted of one count of robbery with violence and one count of assault with intent to steal using actual violence.

The legal issue before the court was whether the appellant's sentence was excessive or inappropriate in light of the parity principle. The appellant argued that there was insufficient distinction between his role and that of the primary instigator, and therefore, his sentence should be reduced. The appellant's sentence was 6 years' imprisonment on the first count and 5 years' imprisonment on the second count, served concurrently with probation. The court was required to consider the relative factors of aggravation and mitigation in determining whether the sentence was appropriate.

In its decision, the court found that the appellant's role in the crime was significant, and his participation in the assault caused significant physical injury to the victims. The court held that the sentence imposed was appropriate and did not breach the parity principle. The court found that the appellant's sentence was commensurate with the seriousness of the crimes committed, and that the primary instigator's sentence was not necessarily a benchmark for the appellant's sentence. The court found that the appellant's sentence was appropriate and did not require any alteration. The application for leave to appeal against sentence was dismissed.

Orders