Cheetham v Martin

Case [2021] WASC 87


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CHEETHAM -v- MARTIN [2021] WASC 87

CORAM:   SMITH J

HEARD:   22 MARCH 2021

DELIVERED          :   30 MARCH 2021

FILE NO/S:   SJA 1072 of 2020

BETWEEN:   LUKE ANTHONY CHEETHAM

Appellant

AND

WAYNE DAVID RYAN MARTIN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE G BENN

File Number            :   JO 4928 of 2020


Catchwords:

Criminal law - Appeal against sentence - Manifest excess as to type and length of sentence - Whether term of imprisonment should have been suspended - Whether length of sentence manifestly excessive

Criminal law - Appeal against sentence - Assault causing bodily harm

Legislation:

Criminal Code (WA), s 317
Sentencing Act 1995 (WA), s 6(2), 6(4), s 9AA, s 76(1), s 76(2)

Result:

Leave to appeal refused
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : Mr C Townsend
Respondent : Ms K Cook

Solicitors:

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

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

Brown v The State of Western Australia [2010] WASCA 228

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DKN v The State of Western Australia [2018] WASCA 87

Drage v The State of Western Australia [2021] WASCA 6

Duncan v The State of Western Australia [2018] WASCA 154

Fogg v The State of Western Australia [2011] WASCA 11

Golding v Gaunt [2020] WASC 361

Harvey v Ingles [2004] WASCA 30

Krencej v The State of Western Australia [2019] WASCA 82

Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289

Powell v Tickner [2010] WASCA 224

R v Liddington (1997) 18 WAR 394

Shi v The State of Western Australia [2020] WASCA 197

Shoard v Van Der Zanden [2013] WASC 163

Spirovski v The State of Western Australia [2017] WASCA 230

Stanley v The State of Western Australia [2018] WASCA 229

Tang v The Queen [2020] WASCA 194

The State of Western Australia v McCarthy [2014] WASCA 210

Tunney v The State of Western Australia [2013] WASCA 286

SMITH J:

The appeal, the grounds of appeal and the result

  1. The appellant seeks leave to appeal the sentence imposed by a magistrate sitting in the Magistrates Court at Joondalup, for one count of assault causing bodily harm.  On 16 September 2020, the appellant was sentenced, upon a plea of guilty, to a term of immediate imprisonment of 14 months, with parole eligibility.  The appellant was ordered to pay costs of $118.50.

  2. The appellant seeks to appeal the sentence on two grounds which allege implied error and raise for consideration whether the sentence was manifestly excessive as to the type of sentence, and the length of imprisonment. 

  3. In ground 1 of the appeal, it is alleged that the sentencing magistrate erred by not suspending, conditionally or otherwise, the term of imprisonment imposed.  In ground 2 of the appeal, it is alleged the sentencing magistrate imposed a sentence that was manifestly excessive as to the length of sentence,…

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Cheetham v Martin [2021] WASC 87
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[2021] WASC 87
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CaseChat Overview and Summary

The appellant, Luke Cheetham, seeks leave to appeal against the sentence imposed by the Magistrates Court of Western Australia for one count of assault causing bodily harm, arguing that the sentence was manifestly excessive as to the type and length of imprisonment. The appellant was sentenced to a term of immediate imprisonment of 14 months with parole eligibility, and ordered to pay costs of $118.50. Ground 1 of the appeal alleges that the sentencing magistrate erred by not suspending the term of imprisonment imposed. Ground 2 of the appeal alleges that the sentencing magistrate imposed a sentence that was manifestly excessive as to the length of sentence. Ground 2 of the appeal is pressed if ground 1 of the appeal fails.

The court found that the appeal should be dismissed. In determining whether a sentence for an individual offence is manifestly excessive, the court should view the offence in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances. The court noted that there is no tariff for the offence of assault causing bodily harm given there is a very wide variety of circumstances that can arise both in relation to the nature of the offence and the circumstances of aggravation, if any. In this matter, having regard to the maximum penalty for assault causing bodily harm, the serious facts and circumstances of the offending and all other relevant factors, including the vulnerability of the victim and all mitigating factors, it cannot be found that a sentence of 14 months' imprisonment is not broadly consistent with other comparable cases for this type of offence. The court found that the appellant had not established that the appeal had a reasonable prospect of success and leave to appeal should be refused.

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