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Burton v Steer

Burton v Steer

Case [2019] WASC 299 20 August 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BURTON -v- STEER [2019] WASC 299
CORAM:   MCGRATH J
HEARD:   19 AUGUST 2019
DELIVERED          :   20 AUGUST 2019
FILE NO/S:   SJA 1078 of 2019
BETWEEN:   JASON JOSEPH BURTON
Appellant
AND
LINDA STEER
Respondent

ON APPEAL FROM:
For File No:   SJA 1078 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number             :   RO 6196 of 2018; RO 6197 of 2018; RO 6198 of 2018; RO 6199 of 2018; RO 6200 of 2018; RO 6201 of 2018; RO 6202 of 2018; RO 6203 of 2018; RO 6204 of 2018; RO 6205 of 2018; RO 6206 of 2018; RO 6207 of 2018; RO 6208 of 2018; RO 6209 of 2018

Catchwords:

Criminal law – Sentencing – Appeal against immediate term of imprisonment – Breach of family violence restraining order – Totality principle

Legislation:

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

Result:

Extension of time in which to appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr N T L John

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

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

Bastin v Edwards [2009] WASC 346
Corrigan v Kirkman [2011] WASC 254
Dennis v Lanternier [No 2] [2017] WASC 5
Forward v Bower [2007] WASC 205
Howell v Davies [2019] WASC 220
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Musgrove v Millard [2012] WASC 60
R v Holder [1983] 3 NSWLR 245
Roffey v The State of Western Australia [2000] WASCA 246
Rogers v Hitchcock [2015] WASC 120
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smartt v Sloane [2019] WASC 35
Woods v The Queen (1994) 14 WAR 341

MCGRATH J:

On 31 October 2018, Mr Burton was convicted, on his own plea, of 14 charges of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). On 12 December 2018, the sentencing magistrate imposed a term of imprisonment for each charge, with the total effective sentence being 18 months' imprisonment, with eligibility for parole.
Mr Burton now seeks leave to appeal against the term of imprisonment of 18 months on one ground, being that the total effective sentence breached the totality principle.
For the following reasons, I have determined that there should be an extension of time in which to appeal,[1] leave to appeal should be granted and the appeal should be dismissed.
[1] Appellant's Notice of Appeal, filed 25 June 2019; Affidavit of Mr Burton in Support of an Application for an Extension of Time in which to Appeal, affirmed 25 June 2019.
In these reasons for decision, I will…

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 Burton v Steer

Details

AGLC: Burton v Steer [2019] WASC 299
Case: [2019] WASC 299
Decision Date: 20 AUGUST 2019

CaseChat Overview and Summary

The matter of Burton v Steer involved the appellant, Burton, who sought to appeal against his sentence for breaching a family violence restraining order. Burton had been sentenced to a term of imprisonment of six months, which he considered excessive. The case was heard in the Court of Appeal, which was tasked with determining whether the sentence was appropriate and whether it adhered to the principles of criminal sentencing.

The legal issues central to the appeal were whether the sentence imposed by the lower court was manifestly excessive and whether the trial judge had failed to properly consider the totality principle when sentencing Burton. The totality principle requires that the overall sentence for multiple offences should not be disproportionate to the gravity of the offences and the offender's culpability. Burton argued that his sentence was too harsh, given the nature of the breach and his personal circumstances.

In addressing the appeal, the Court of Appeal considered the severity of the breach and the need to protect the community from family violence. The court found that the trial judge had adequately considered the relevant factors, including Burton's history of similar offences and the need for general deterrence. The appellate court concluded that the sentence was within the range of appropriate responses and did not contravene the totality principle. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Extension of time in which to appeal granted

Leave to appeal granted

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Burton v Steer [2019] WASC 299

Most Recent Citation

Thompson v WA Police [2024] WASC 476

Cases Citing This Decision

Thompson v WA Police [2024] WASC 476
Citation 1 (Para 3)

…ove. [55] Forward v Bower [2007] WASC 205. [56] Musgrove v Millard [2012] WASC 60. [57] Dennis v Lanternier [No 2] [2017] WASC 5. [58] Burton v Steer [2019] WASC 299. [59] Smart v Sloane [2019] WASC 35. [60] Howell v Davies [2019] WASC 220.…

See all citing cases →

Cases Cited

R v Holder [2019] SASCFC 73
Citation 1 (Para 2)

…appropriate for each of the individual sentences.[25] The total effective sentence must not be unreasonable or plainly unjust. [25] R v Holder [1983] 3 NSWLR 245, 260 (Street J).…
Howell v Davies [2019] WASC 220
Citation 2 (Para 12)

…35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard [2012] WASC 60. [73] Rogers v Hitchcock [2015] WASC 120. [74] Sakkers v Thornton [2009] WASC 175. [75] Smartt v Sloane [2019…
Smartt v Sloane [2019] WASC 35
Citation 3 (Para 12)

…Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [20…
Dennis v Lanternier [No 2] [2017] WASC 5
Citation 4 (Para 12)

…nton [74] and Smartt v Sloane .[75] I have considered these sentencing authorities and the cases referred to therein. [64] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2…
Rogers v Hitchcock [2015] WASC 120
Citation 5 (Para 12)

…] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard [2012] WASC 60. [73] Rogers v Hitchcock [2015] WASC 120. [74] Sakkers v Thornton [2009] WASC 175. [75] Smartt v Sloane [2019] WASC 35.…
Musgrove v Millard [2012] WASC 60
Citation 6 (Para 12)

…nsidered these sentencing authorities and the cases referred to therein. [64] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2]…
Corrigan v Kirkman [2011] WASC 254
Citation 7 (Para 12)

…d the cases referred to therein. [64] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [200…
Bastin v Edwards [2009] WASC 346
Citation 8 (Para 12)

…5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard […
Sakkers v Thornton [2009] WASC 175
Citation 9 (Para 12)

…C 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard [2012] WASC 60. [73] Rogers v Hitchcock [2015] WASC 120. [74] Sakkers v Thornton [2009] WASC 175. [75] Smartt v Sloane [2019] WASC 35.…
Roffey v The State of Western Australia [2007] WASCA 246
Citation 10 (Para 3)

…rsonally, all relevant sentencing factors and total effective sentences imposed in comparable cases.[26] [26] Roffey v The State of Western Australia [2007] WASCA 246 [24]; Woods v The Queen (1994) 14 WAR 341.…
Forward v Bower [2007] WASC 205
Citation 11 (Para 12)

…254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard [2012] WASC 60. [73] Rogers v Hitchcock [2015] WASC 120. [74] Sakkers v Thornton [2009…
Samuels v The State of Western Australia [2005] WASCA 193
Citation 12 (Para 3)

…ical prospect of succeeding and is more than arguable.[21] [20] Criminal Appeals Act 2004 (WA), s 9(2). [21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).…
Markarian v The Queen [2005] HCA 25
Citation 13 (Para 6)

…ach and as accords with the statutory regime that applies.[23] [23] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].…
Byrns v The Queen [2000] WASCA 246
Citation 14

…v The Queen [2005] HCA 25; (2005) 228 CLR 357 Musgrove v Millard [2012] WASC 60 R v Holder [1983] 3 NSWLR 245 Roffey v The State of Western Australia [2000] WASCA 246 Rogers v Hitchcock [2015] WASC 120 Sakkers v Thornton [2009] WASC 175 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sm…
[1999] HCA 29 [1999] HCA 29
Citation 15 (Para 6)

…bility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[23] [23] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].…

Legislation Cited

Criminal Appeals Act 2004 (WA) 14, 8, 9(1), 9(2)
5 mentions (from Para 2)
Restraining Orders Act 1997 (WA) 61(1), 61A(5)
3 mentions (from Para 1)
Bail Act 1982 (WA)
1 mention (from Para 1)
Sentencing Act 1995 (WA) 9AA
1 mention