Brown v Nation - [2019] WASC 430

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BROWN -v- NATION & ORS [2019] WASC 430
CORAM:   CORBOY J
HEARD:   30 AUGUST 2019, 26 SEPTEMBER 2019 & 1 OCTOBER 2019
DELIVERED          :   1 OCTOBER 2019
PUBLISHED           :   27 NOVEMBER 2019
FILE NO/S:   SJA 1019 of 2019
BETWEEN:   CHRISTOPHER AARON BROWN
Appellant
AND
LAURA KELLY NATION
First Respondent
KYLIE THOMAS
Second Respondent
GEOFFREY PECK
Third Respondent
JASON BALLANTYNE
Fourth Respondent
LACHLAN DENNIS
Fifth Respondent
KWINTIN THERON
Sixth Respondent

ON APPEAL FROM:
For File No:   SJA 1019 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE LONGDEN
File Number             :   BU 320 of 2016, BU 4652 of 2017, BU 4655 of 2017, BU 4656 of 2017, BU 6605 of 2017, AR 7083 of 2018, AR 7090 of 2018, AR 7091 of 2018, MH 28 of 2018
For File No:   SJA 1116 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MILLINGTON
File Number             :   BU 320 of 2016

Catchwords:

Criminal law – Appeal from sentence – Order made under s 80(1) of the Sentencing Act 1995 (WA) after expiry of suspended imprisonment order – No power to make order – Appellant resentenced

Legislation:

Sentencing Act 1995 (WA), s 9AA, s 80(1)

Result:

Leave to extend time within which to appeal granted
Leave to amend notice of appeal
Appeal allowed
Sentence set aside and appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr A Elliott (30 August 2019); Mr D Jones (26 September & 1 October 2019)
First Respondent	:	Ms M Yeung
Second Respondent	:	Ms M Yeung
Third Respondent	:	Ms M Yeung
Fourth Respondent	:	Ms M Yeung
Fifth Respondent	:	Ms M Yeung
Sixth Respondent	:	Ms M Yeung

Solicitors:

Appellant	:	NR Barber Legal
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)
Fourth Respondent	:	Director of Public Prosecutions (WA)
Fifth Respondent	:	Director of Public Prosecutions (WA)
Sixth Respondent	:	Director of Public Prosecutions (WA)

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

Delahunty v Sinden [2019] WASC 91
Dreja v The State of Western Australia [2012] WASCA 151
Powell v Tickner [2010] WASCA 224
Wallam v Dent [2008] WASC 170

CORBOY J:

(These reasons were delivered orally on 1 October 2019 and were edited for publication from the transcript.)

The background to the appeal

On 22 February 2016, the appellant pleaded guilty to a charge that on 16 November 2015, at College Grove, he assaulted David Thomas McWilliams who was performing a function of his employment, namely, working in a hospital (charge BU 320/2016; the November 2015 assault). The assault was made an offence by s 318(1)(i)(i) of the Criminal Code (WA). The appellant was sentenced to 7 months' imprisonment suspended for 12 months, commencing on 22 February 2016 (the First SIO).
In early January 2018, the appellant pleaded guilty to further charges:
(1)on 15 June 2016, at Carey Park, he unlawfully assaulted Teddy Beske, contrary…

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 Brown v Nation

Details

AGLC: Brown v Nation [2019] WASC 430
Case: [2019] WASC 430
Decision Date: 27 NOVEMBER 2019

CaseChat Overview and Summary

Brown v Nation involved an appeal against a sentence by the appellant, Brown, in the Supreme Court of Western Australia. The dispute centred on the legality of an order made by the respondent, Nation, under section 80(1) of the Sentencing Act 1995 (WA) after the expiration of a suspended imprisonment order. The appellant argued that the order was beyond the court's jurisdiction, as the suspended sentence had already lapsed. The appeal focused on whether the court retained the authority to impose the order following the expiration of the suspended sentence.

The court was required to determine whether it had the jurisdiction to make an order under section 80(1) of the Sentencing Act after the expiration of a suspended imprisonment order. This involved interpreting the relevant provisions of the Act and examining the temporal limits of judicial power in sentencing matters. The central issue was whether the court's authority to impose a sentence could be retroactively exercised after the period of the suspended imprisonment had already ended.

The court found that once the period of the suspended imprisonment had expired, the court no longer retained the power to make an order under section 80(1) of the Sentencing Act. The court reasoned that the statutory provision did not provide for the continuation of judicial authority post-expiration of the suspended sentence. Consequently, the order made by the respondent was deemed invalid. The court's decision hinged on a strict interpretation of the statutory language and the principle that judicial power is limited to the timeframe prescribed by law. As a result, the appellant was resentenced in accordance with the legal framework governing sentencing after the expiration of a suspended order.

In light of the court's findings, the final orders included the quashing of the original sentencing order and the resentencing of the appellant under the appropriate provisions of the Sentencing Act. The court clarified that once a suspended imprisonment order had expired, any subsequent order would be null and void. This decision underscored the importance of adhering to statutory timeframes in sentencing and the limitations on judicial authority in such matters.

Orders