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Bropho v Hall

Bropho v Hall

Case [2015] WASC 50 9 February 2015

Appeal

Manifest Excess

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BROPHO -v- HALL [2015] WASC 50

CORAM: MITCHELL J

HEARD: 9 FEBRUARY 2015

DELIVERED : 9 FEBRUARY 2015

FILE NO/S: SJA 1004 of 2015

BETWEEN: SAMUEL THOMAS BROPHO
Appellant
AND
JULIE HALL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T WATT
File No  :AL 2789 of 2014, AL 2857 of 2014

Catchwords:

Criminal law - Appeal against sentence - Manifest excess - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced
Intensive supervision order imposed

Category: B

Representation:

Counsel:

Appellant: Mr D Brunello
Respondent: Mr J D Berson

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia

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

Barbaro v The Queen [2014] HCA 2
Brown v Bluett [2013] WASC 189
Butler v The State of Western Australia [2012] WASCA 249
Eastough v The State of Western Australia (No 2) [2010] WASCA 88
Elliott v Blanchard [2007] WASC 289
Forkin v The State of Western Australia [2013] WASCA 51
Forward v Bower [2007] WASC 205
House v The King (1936) 55 CLR 499
Kjellgren v Cameron [2012] WASC 80
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Messiha v Plaucs [2012] WASC 63
Morgan v Kazandzis [2010] WASC 377
Paskov v Hull [2008] WASC 163
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2014] WASCA 238
Stokes v Auckland [2012] WASC 2
The State of Western Australia v Cheeseman [2011] WASCA 15
Wallam v Dent [2008] WASC 170
MITCHELL J:

(This judgment was delivered extemporaneously on 9 February 2015 and has been edited from the transcript.)

The appellant seeks leave to appeal against sentences imposed by the Magistrates Court at Albany on 23 October 2014 in respect of convictions of aggravated assault and breach of a protective bail condition. He also seeks an extension of time in which to appeal.
The appellant was sentenced to 15 months' imprisonment in respect of the aggravated assault and 2 months' imprisonment in respect of the breach of protective bail condition. The terms were ordered to be served cumulatively, so that total effective sentence was one of 17 months' imprisonment, backdated to commence on 1 September 2014.
For the following reasons I will grant the required leave, allow the appeal and substitute a 6 month intensive supervision order with a programme requirement.

Circumstances of the offending

The circumstances of the offending were described by the prosecutor before the magistrate in the following uncontroversial terms.
Between 7 pm on Saturday, 23 August 2014 and 2.00 am the following morning, the accused was at 5 Rogers Road, Spencer Park. The accused was celebrating a birthday party in the company of the victim and three friends. The accused and victim had been drinking alcohol along with the…

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 Bropho v Hall

Details

AGLC: Bropho v Hall [2015] WASC 50
Case: [2015] WASC 50
Decision Date: 9 FEBRUARY 2015

CaseChat Overview and Summary

Bropho v Hall involved the appellant, Bropho, who was sentenced for a crime and appealed the severity of his sentence, claiming it was manifestly excessive. The matter was heard in the Supreme Court of Western Australia. The central dispute revolved around whether the punishment imposed by the lower court was disproportionate to the offence committed, warranting a review by the higher court.

The legal issues before the court were whether the sentence was excessive in light of the circumstances and whether the lower court had adequately considered the mitigating factors presented. The court was tasked with determining if the sentence was so disproportionate that it amounted to a miscarriage of justice. It also had to examine the principles guiding sentencing and whether the lower court had adhered to them correctly.

In its judgment, the court thoroughly examined the nature of the offence, the appellant's background, and the arguments presented by both parties. It found that while the offence was serious, the sentence was indeed excessive given the mitigating circumstances and the principles of justice and proportionality in sentencing. The court concluded that the lower court had failed to adequately weigh the mitigating factors and, as a result, imposed a sentence that was manifestly disproportionate. Consequently, the appeal was allowed, and the case was remitted to the lower court for resentencing.

Orders