Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V EDWARDS
File Number : RO 2746 of 2018
Catchwords:
Criminal law - Appeal against conviction - Aggravated assault occasioning bodily harm - Domestic violence - Circumstances in which a plea of guilty will be set aside on appeal considered - Application to adduce additional evidence refused - No evidence of self‑defence disclosed in affidavit
Appeal against sentence of immediate imprisonment - Whether sentence manifestly excessive - Whether term should have been suspended - Sentencing principles considered - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 8(2), s 40(1)(e) Criminal Code (WA), s 248(2), s 248(4), s 317(1)(a) Sentencing Act 1995 (WA), s 6(4), s 39(3)
(This judgment was delivered extemporaneously on 26 October 2018 and has been edited from the transcript).
The appeal
On 15 May 2018, the appellant pleaded guilty and was convicted in the Rockingham Magistrates Court of one count of aggravated assault occasioning bodily harm contrary to s 317(1)(a) of the Criminal Code. The circumstances of aggravation were that the appellant was in a family relationship with the victim.
On 27 June 2018, the appellant was sentenced to 9 months' immediate imprisonment with eligibility for parole.
The appellant seeks leave to appeal against conviction and…
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.
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Details
AGLC
Chidoti v Terrey [2018] WASC 332
Case
[2018] WASC 332
Decision Date
CaseChat Overview and Summary
Chidoti appealed against his conviction and sentence for aggravated assault occasioning bodily harm, arguing that the plea of guilty should have been set aside and that the sentence was manifestly excessive. The dispute arose from an incident of domestic violence where Chidoti assaulted the victim, causing bodily harm. The appeal was heard by the court, which had to determine whether the plea of guilty should have been accepted, whether the sentence was manifestly excessive, and whether the term of imprisonment should have been suspended. The court found that the plea of guilty should not have been set aside as there was no evidence of self-defence. The application to adduce additional evidence was also refused. Regarding the sentence, the court held that it was not manifestly excessive and that there were no grounds for suspending the term of imprisonment.
The court considered the principles of sentencing for aggravated assault and domestic violence, noting the seriousness of the offence and the need for deterrence. The appeal against the conviction was dismissed, and the sentence was upheld. The court found that the sentence reflected the gravity of the offence and that there were no grounds for reducing the term of imprisonment. The court also noted that the evidence of the victim's injuries and the circumstances of the assault supported the conviction. The appeal against the sentence was dismissed, and the original sentence of immediate imprisonment was affirmed.