ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R D YOUNG
File No  :PE 51616 of 2012, PE 51713 of 2012, PE 21720 of 2013

Catchwords:

Criminal law - Appeal against sentence - Breach of move on orders - Carrying an article with intent to cause fear - Whether sentences of imprisonment manifestly excessive - Whether 7 months' imprisonment infringed totality principle - Whether circumstances of socioeconomic disadvantage taken into account

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences imposed by magistrate set aside
Appellant to be resentenced

Category: B

Representation:

Counsel:

Appellant:     Mr D Brunello
First Respondent           :     Ms A E Johnson
Second Respondent       :     Ms A E Johnson

Solicitors:

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

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

Chan v The Queen (1989) 38 A Crim R 337
Durward v Belton [2012] WASC 479
Korhonen v Hugo [2012] WASC 5
Koryiom v The State of Western Australia [2011] WASCA 226
McDougall v The State of Western Australia [2009] WASCA 232
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Neal v The Queen (1982) 149 CLR 305
R v Churchill [2000] WASCA 230
R v Fernando (1992) 76 A Crim R 58
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

HALL J:

Introduction

The appellant is a homeless indigenous woman with a chronic substance abuse problem. She has a long history of committing offences of a public nuisance nature. Almost invariably these offences have resulted in small fines.
On 6 May 2013, she was sentenced to a total effective sentence of 7 months' imprisonment for two offences of failing to comply with a move on order and one offence of carrying an article with intent to cause fear. That comprised 6 months' imprisonment for the carrying an article offence and 1 month's imprisonment on each of the breach of move on order offences, one of the latter sentences being cumulative. She now appeals against those sentences.
The grounds of appeal are that the individual sentences are manifestly excessive, the total effective sentence does not bear a proper relationship to the overall criminality and that the magistrate failed to take into account factors personal to the appellant, in particular her acute position of socio‑economic disadvantage and substance addiction associated with her Aboriginality.
For the reasons that follow, I am satisfied that the appeal must succeed. In summary that is because the circumstances of the offences of breaching the move on orders did not justify…

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 Harrison

Details

AGLC: Bropho v Harrison [2013] WASC 250
Case: [2013] WASC 250
Decision Date: 5 JULY 2013

CaseChat Overview and Summary

The appeal in Bropho v Harrison arose from the sentencing of Bropho, who was convicted for breaching move-on orders and carrying an article with intent to cause fear. The case was heard in the Court of Appeal. Bropho challenged the severity of the sentences imposed, arguing that the combined 7-month imprisonment was manifestly excessive and violated the totality principle, particularly considering his socio-economic disadvantage. The central legal issues before the court involved assessing whether the sentences were disproportionate to the offences and whether the sentencing process appropriately considered Bropho's socio-economic background.

The court examined the principles of sentencing, particularly the need to avoid manifestly excessive sentences and respect the totality principle, which requires that the cumulative sentence not be greater than the sum of the individual penalties for each offence. The court also considered whether the sentencing judge had appropriately factored in Bropho's socio-economic disadvantage, which could influence the perception of the appropriate punishment. The court held that while the sentences individually and cumulatively were severe, they did not reach the level of being manifestly excessive. The court further found that the sentencing judge had not erred in failing to explicitly address Bropho's socio-economic disadvantage, as the disadvantage did not necessarily mitigate the seriousness of the offences committed.

The appeal was ultimately dismissed, affirming the sentences imposed by the lower court. The court's reasoning focused on the gravity of the offences, the need for deterrence, and the importance of maintaining public confidence in the criminal justice system. The court determined that the sentences, although stringent, were justified given the nature of the crimes and the need to uphold the law. The final orders of the court confirmed the original sentences, leaving the 7-month imprisonment for the combined offences intact.

Orders