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Briggs v Houlihan

Briggs v Houlihan

Case [2018] WASC 301 28 September 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BRIGGS -v- HOULIHAN [2018] WASC 301
CORAM:   MCGRATH J
HEARD:   27 SEPTEMBER 2018
DELIVERED          :   28 SEPTEMBER 2018
FILE NO/S:   SJA 1091 of 2018
BETWEEN:   MATTHEW DAVID BRIGGS
Appellant
AND
MATTHEW HOULIHAN
Respondent

ON APPEAL FROM:
For File No:   SJA 1091 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K M TAVENER
File Number             :   MI 514 2018

Catchwords:

Criminal law - Restraining Orders Act 1997 (WA) - Breach 24 hour police order - Suspended term of imprisonment imposed - Appeal against sentence - Express error of law - Magistrate failed to take into account early plea of guilty - Manifestly excessive - Offender re-sentenced to a fine

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Restraining Orders Act 1997 (WA), s 61(2a)
Sentencing Act 1995 (WA) s 6, s 7(2), s 9AA, s 53

Result:

Extension of time in which to appeal granted
Leave to appeal granted on grounds one and two
Appeal allowed
Suspended term of imprisonment set aside and in lieu thereof a fine of $2,000 is imposed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms Z Bush

Solicitors:

Appellant	:	Legal Aid
Respondent	:	State Solicitor's Office (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151
Bardsley v The Queen (2004) 29 WAR 338
Burrows v The State of Western Australia [2014] WASCA 147
Chan v The Queen (1989) 38 A Crim R 337
Cullen v Rollings [2009] WASC 80
Dennis v Lanternier [No 2] [2017] WASC 5
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Knight v The State of Western Australia [2014] WASC 57
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Roberts v The State of Western Australia [2014] WASCA 239
Rogers v Hitchcock [2015] WASC 120
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Winmar v Clark [2015] WASC 314

MCGRATH J:

Mr Briggs was charged with one offence of breaching a 24 hour police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA). Mr Briggs pleaded guilty to that charge and was sentenced to a term of imprisonment for 7 months, suspended for 8 months. Mr Briggs now seeks leave for an extension of time in which to appeal[1] and for leave to appeal against the sentence imposed.[2] Mr Briggs contends that the magistrate made an express error of law at sentencing and further, imposed a sentence that was manifestly excessive.
[1] Affidavit of Ms Sinton affirmed 27 June 2018.
[2] Appeal Notice dated 27 June 2018.
For the following reasons, I have…

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 Briggs v Houlihan

Details

AGLC: Briggs v Houlihan [2018] WASC 301
Case: [2018] WASC 301
Decision Date: 28 SEPTEMBER 2018

CaseChat Overview and Summary

The case of Briggs v Houlihan involved a dispute under the Restraining Orders Act 1997 (WA), concerning a breach of a 24-hour police order. The defendant, Briggs, had appealed the sentence imposed by the magistrate, arguing that it was manifestly excessive and did not adequately reflect his early plea of guilty. The appeal was heard in the District Court of Western Australia, which had jurisdiction to review the original sentence imposed by the magistrate.

The primary legal issue before the court was whether the sentence imposed by the magistrate was appropriate given the circumstances of the case, particularly whether the magistrate had failed to take into account Briggs' early plea of guilty. The court was also required to determine if the sentence was manifestly excessive and, if so, what an appropriate sentence would be in light of the circumstances.

The court found that the magistrate had indeed failed to take into account Briggs' early plea of guilty, which was a significant mitigating factor. The court further determined that the sentence imposed was manifestly excessive, as it did not reflect the appropriate considerations and the discount for the early plea. As a result, the court set aside the original sentence and re-sentenced Briggs to a fine. This decision underscored the importance of properly considering all relevant factors, including early pleas of guilty, in sentencing. The court's ruling ensured that the sentence imposed was fair and appropriate, reflecting the mitigating factors present in the case.

Orders