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

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.
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.
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,…

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 Cheetham v Martin

Details

AGLC: Cheetham v Martin [2021] WASC 87
Case: [2021] WASC 87
Decision Date

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.

Orders