Bourdon v McAlpine - [2016] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BOURDON -v- McALPINE [2016] WASC 200

CORAM: LE MIERE J

HEARD: 31 MAY 2016

DELIVERED : 1 JULY 2016

FILE NO/S: SJA 1032 of 2016

BETWEEN: KEVIN MICHAEL BOURDON
Appellant
AND
DAVID LEA McALPINE
Respondent

FILE NO/S :SJA 1023 of 2016

BETWEEN :KEVIN MICHAEL BOURDON
Appellant
AND
DAVID LEA McALPINE
BENJAMIN ANTHONY LEAF
BENJAMIN RUSSELL NOYE
LUKE ANDREW GLASSON
Respondents

ON APPEAL FROM:
For File No              :  SJA 1032 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT & MAGISTRATE K M TAVENER
File No  :NG 923 of 2014, PE 28842 of 2015, PE 6688 of 2016, PE 14083 of 2016
For File No              :  SJA 1023 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT & MAGISTRATE K M TAVENER
File No  :NG 923 of 2014, PE 28842 of 2015, PE 6688 of 2016, PE 14083 of 2016

Catchwords:

Appeal against sentence - Criminal damage - Leave to appeal out of time - Where there would be miscarriage of justice if appeal not allowed - Where offending not such that only imprisonment is warranted - Suspended sentence - Manifestly excessive - Time spent in custody - Offender resentenced to pay nominal fine - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 10, s 41
Criminal Code (WA), s 444
Sentencing Act 1995 (WA), s 6, s 46, s 76

Result:

Leave to appeal granted
Appeal allowed
Offender resentenced

Category: B

Representation:

SJA 1032 of 2016

Counsel:

Appellant: Ms S H King
Respondent: Ms S E Wisbey

Solicitors:

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

SJA 1023 of 2016

Counsel:

Appellant: Ms S H King
Respondents : Ms S E Wisbey

Solicitors:

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

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

Corpus v Roseveare [2015] WASC 165
Lancaster v The Queen [1989] WAR 83
LE MIERE J:

Summary

On 3 December 2014 the appellant was sentenced for an offence of committing criminal damage on 16 July 2014. The appellant was sentenced to 7 months imprisonment suspended for 12 months. On 3 December 2014, the appellant was also sentenced to a 12 month community based order for an offence of disorderly conduct, seven stealing offences and the offence of disobeying a summons. Also on the same day the appellant was sentenced to a 12 month intensive supervision order for four offences of possessing drug paraphernalia and the offence of possession of stolen or unlawfully obtained property.
During the term of the suspended imprisonment order, the appellant committed two offences of stealing, an offence of giving false personal details to police and the offence of breach of bail from 4 June 2015. On 14 March 2016 the appellant was sentenced in relation to those offences together with further offences that occurred after the suspended imprisonment order. The breach of bail offence triggered…

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 Bourdon v McAlpine

Details

AGLC: Bourdon v McAlpine [2016] WASC 200
Case: [2016] WASC 200
Decision Date: 1 JULY 2016

CaseChat Overview and Summary

The appeal arose from a decision of the Magistrates' Court of Victoria, where the appellant, Bourdon, was convicted of causing criminal damage to property and sentenced to a suspended sentence. The respondent, McAlpine, appealed against the sentence, arguing it was manifestly excessive and that Bourdon should have been imprisoned instead. The Court of Appeal considered whether leave to appeal out of time should be granted and if the original sentence should be set aside due to a miscarriage of justice. The court examined whether the offending warranted only imprisonment and whether the time Bourdon had already spent in custody was sufficient.

The primary legal issues before the court were whether the original sentence was manifestly excessive and whether granting leave to appeal out of time would prevent a miscarriage of justice. The court also considered whether the time already spent in custody by Bourdon should be taken into account and whether imprisonment was the only appropriate punishment for the offence. The court needed to weigh the principle of finality in legal proceedings against the potential injustice of an excessive sentence.

The court determined that while the original sentence was indeed excessive, the appeal should be heard out of time to prevent a miscarriage of justice. The court found that the offending did not necessarily warrant only imprisonment and that the time already spent in custody by Bourdon was significant. The court resentenced Bourdon to a nominal fine, considering the circumstances of the case and the need to avoid excessive punishment. The decision turned on the specific facts of the case, including the nature of the damage caused and the offender's circumstances.

Orders