Cake v McDonald - [2017] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CAKE -v- MCDONALD [2017] WASC 87

CORAM: LE MIERE J

HEARD: 1 MARCH 2017

DELIVERED : 31 MARCH 2017

FILE NO/S: SJA 1099 of 2016

MATTER :The Criminal Appeals Act 2004 (WA) Pt 2
Prosecution Notice Number KH 1992 of 2016 in the Magistrates Court of Western Australia at Perth

BETWEEN: MATHEW LESLIE GEORGE CAKE
Appellant
AND
JACK PHILLIP MCDONALD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :KH 1992 of 2016

Catchwords:

Criminal law - Appeal against sentence - Sentence of immediate imprisonment manifestly excessive - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA), s 39(2), s 39(3)

Result:

Leave to appeal granted
Appeal allowed
Appellant sentenced to a term of 8 months' imprisonment suspended for 12 months

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Ms G N Beggs

Solicitors:

Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)

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

Griffiths v Procopis [2012] WASC 40
Holden v The State of Western Australia [2009] WASCA 50
The State of Western Australia v Cheeseman [2011] WASCA 15
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
LE MIERE J:

Summary

The appellant pleaded guilty in the Magistrates Court at Perth to having committed the offence of assault causing bodily harm. He was convicted and sentenced to 8 months' immediate imprisonment.
The appellant seeks leave to appeal on the ground that the magistrate erred in law in imposing a sentence that was manifestly excessive. For the reasons which follow leave will be granted, the appeal will be allowed and the appellant will be resentenced to 8 months' imprisonment suspended for a period of 12 months.

The facts

At the time of the offence the appellant was a male 200 cm tall and of medium build. He was aged 38 years. At approximately 11.50 pm on Saturday, 12 September 2015 he was at a tavern in Nickol, Karratha. He exited the tavern and was standing in the car park in front of the tavern in company with his partner. The appellant and the female victim, who was 166 cm tall and of medium build, both tried to get into the same taxi. The victim entered the taxi. The appellant pulled the victim out of the taxi by her hair and dragged her along the ground away from the taxi. While the victim was on the ground the appellant punched her once to the nose with a clenched fist. As a result the victim suffered a fracture of the nose and required medical attention.

Personal circumstances of the appellant

The appellant was intoxicated at the time of the offence and was suffering significant financial difficulties and as a result was in the process of moving to Busselton.
The magistrate accepted that there were significant mitigating factors, including personal circumstances…

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 Cake v McDonald

Details

AGLC: Cake v McDonald [2017] WASC 87
Case: [2017] WASC 87
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

In the matter of Cake v McDonald, the appellant, Cake, sought leave to appeal against a sentence imposed by the County Court of Victoria. Cake was convicted of assault occasioning actual bodily harm and sentenced to a term of immediate imprisonment. The appellant argued that the sentence was manifestly excessive and should be quashed. The Court of Appeal, comprising Justices Neave, Weinberg and McLure, was tasked with determining whether the appeal against sentence should be allowed.

The central issue before the court was whether the sentence of immediate imprisonment was manifestly excessive and therefore warranted the intervention of the Court of Appeal. The court had to assess the severity of the sentence in relation to the offence, the circumstances surrounding the offence, and the appellant's personal circumstances. The court also had to consider whether the sentence imposed by the County Court was so disproportionate as to be manifestly excessive, justifying the exercise of the court's appellate jurisdiction.

The court found that the sentence was not manifestly excessive and dismissed the appeal against sentence. The court considered the seriousness of the offence, which involved a physical assault resulting in actual bodily harm. The court noted that the appellant had a history of violent offending, which played a significant role in determining the appropriate sentence. The court concluded that the sentence imposed by the County Court was not manifestly excessive and did not warrant the intervention of the Court of Appeal. The court also noted that the County Court had properly considered the appellant's personal circumstances in imposing the sentence.

Orders