Chalmers v Ward
[2012] WASC 352
•7 SEPTEMBER 2012
CHALMERS -v- WARD [2012] WASC 352
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 352 | |
| Case No: | SJA:1054/2012 | 7 SEPTEMBER 2012 | |
| Coram: | McKECHNIE J | 7/09/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAKE CAMPBELL CHALMERS KEVIN PAUL WARD STEVEN ANDREW DAVID BRITTON KARL JOSHUA PERRY |
Catchwords: | Criminal law and procedure Totality principle Whether an error in accumulating a sentence for assault on sentences for fraud |
Legislation: | Nil |
Case References: | Roffey v The State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
KEVIN PAUL WARD
STEVEN ANDREW DAVID BRITTON
KARL JOSHUA PERRY
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : JO 9259 of 2011
Catchwords:
Criminal law and procedure - Totality principle - Whether an error in accumulating a sentence for assault on sentences for fraud
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
Respondents : Mr J Newton-Palmer
Solicitors:
Appellant : Legal Aid (WA)
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Roffey v The State of Western Australia [2007] WASCA 246
(Page 3)
- McKECHNIE J:
How this matter comes to court
1 The appellant was sentenced to a total of 4 years' imprisonment in the District Court for a series of fraud offences. He then appeared in the Magistrates Court for a series of other offences, one of which was unconnected to any of the fraud offences. It involved an assault occasioning bodily harm.
2 The facts as outlined to the magistrate were as follows:
The victim is 21 years of age, male, 178 cms tall of slim build. The accused is 26 years of age, 183 cms tall of medium build.
Between 11.40 pm on Saturday, 16 July 2011, and 12.30am on Sunday, 17 July, the victim was at the Hillarys Marina in Hillarys. The victim had been drinking alcohol and was walking alone along on the boardwalk using his mobile telephone. The accused was at the same boardwalk in company with several other people.
The victim and the accused became engaged in a conversation. During this conversation the victim had had his mobile phone taken from him by another person who was charged with that offence.
The accused continued to speak with the victim for some time and then without provocation, punched the victim with a clenched fist twice to the head. The force of the punch has knocked the victim against the wall and on to the ground. The accused and his friends walked away from the victim leaving him lying on the boardwalk. The instant was captured on CCTV.
3 The victim was conveyed to the Joondalup Health Campus for medical treatment to a fractured jaw. He required a titanium plate and screws to be inserted into his jaw.
4 Counsel for the appellant in the trial court made a plea in mitigation and referred to an explanation which had been advanced by the appellant in a letter to the court. That letter now appears to have been mislaid.
5 He pointed out, among other things, that the appellant had a continuing mental depressive state over his father's illness and other matters. The appellant took a decision which he highly regrets. Counsel pointed out that the appellant's history does not show violence and it was not a calculated attack.
(Page 4)
6 Although acknowledging that it was a separate and distinct act, counsel for the appellant asked the magistrate to consider totality in view of the term of 4 years' imprisonment which had been imposed in the District Court.
The reasons for sentence
7 When coming to sentence, after dealing with other matters, the magistrate then turned his attention to the assault and said:
[Mr] Chalmers, that's a very different category. If you go out at night and somebody asks you for the time or something like that, you don't expect to have your jaw broken and for what. You know, as for what? What was the purpose? What was the outcome?
Well, someone is going to suffer. As you are suffering now, someone else is going to suffer. So when he goes out at night he's going to think twice. He's going to be looking at everybody who approaches him as a potential violent offender. You've got to live and put up with that sort of outcome. So it's not only about you; it's about the victim from my perspective. The victim has an entitlement to know that effectively his jaw is worth something.
You say, 'Well, I've got four years.' Well, yes, that's a long time. I accept that, but that related to other activities. I can go with the prospect of these fraud matters and the like are matters that are consistent and fall within the framework of what you previously did but this is another matter and in my view the community has a right to know, the victim has a right to know their jaw being broken has to be worth something.
Now, I'm mindful of totality but, in my view, a term of imprisonment that is cumulative has to be imposed in these circumstances to reflect my comments. I would have otherwise imposed a term of 18 months, so I consider it a serious matter. I have reduced it down to 12 as a matter of totality and then given you three months for the plea of guilty, so it's a nine month term cumulative on existing terms and eligible for parole.
The ground of appeal
8 The appellant's single ground of appeal is:
The learned sentencing Magistrate erred in ordering that the sentence imposed for assault occasioning bodily harm be wholly cumulative upon sentence of four years' imprisonment already being served. Such order resulted in a total effective sentence that was manifestly excessive in that it offended the totality principle.
(Page 5)
Why the appeal fails
9 The totality principle, and its two limbs, is explained in Roffey v The State of Western Australia [2007] WASCA 246 (McLure JA).
10 The assault offence was quite different in character to the other offences. The magistrate specifically took account of the total sentence by reducing the sentence to one of 9 months, structuring the other sentences and, in particular, making them concurrent prison terms with that imposed by the District Court. It is clear that the magistrate was taking into account the overall effect of the criminality to arrive at a sentence which was proportionate and appropriate.
11 The appellant's counsel has put forward a number of cases which bear some similarity to this matter in that they are cases of assault occasioning bodily harm. However, there is a concession that the sentence of 9 months is not of itself in error. The sentence under appeal is one of 9 months' imprisonment. Moreover, I am not persuaded that the starting point, though high, is itself a demonstrated error.
12 The magistrate specifically took account of totality both in determining the length of sentence and its cumulation. The magistrate's decision is correct. This appeal is dismissed.
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