Clarke v Cantatore - [2019] WASC 385

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CLARKE -v- CANTATORE [2019] WASC 385
CORAM:   JENKINS J
HEARD:   3 OCTOBER 2019
DELIVERED          :   3 OCTOBER 2019
PUBLISHED           :   28 OCTOBER 2019
FILE NO/S:   SJA 1105 of 2019
BETWEEN:   ROSS GREGORY CLARKE
Appellant
AND
LEONIE MAREE CANTATORE
Respondent

ON APPEAL FROM:
For File No:   SJA 1105 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D G POTTER
File Number             :   PE 14409 - 14410 of 2015

Catchwords:

Criminal law - Appeal against sentences - Aggravated administration of a noxious thing - Aggravated common assault - Whether individual sentences were manifestly excessive - Whether magistrate erred in concluding that the sentences of imprisonment should be ordered to be served cumulatively - Whether magistrate erred in concluding that the total sentence of imprisonment could not be suspended

Legislation:

Criminal Code (WA), s 301(2), s 313(1)

Result:

Appeal allowed
Order for cumulacy set aside
Sentences ordered to be served concurrently

Category: B

Representation:

Counsel:

Appellant	:	Mr K P Bates
Respondent	:	Ms G Beggs

Solicitors:

Appellant	:	Ken Bates Barrister & Solicitor
Respondent	:	Director of Public Prosecutions (WA)

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

Bropho v Hall [2015] WASC 50
Fogg v The State of Western Australia [2011] WASCA 11
HA v The State of Western Australia [2019] WASCA 69
Leighton v Nelson [2016] WASC 354
Li v Skala [2018] WASC 353
Skipworth v The Sate of Western Australia [2008] WASCA 64
Williams v Pennuto [2016] WASC 325

JENKINS J:

This is an appeal from the sentences imposed (after trial) on the appellant in the Fremantle Magistrates Court on 20 August 2019 for the offences of aggravated administration of a noxious thing to another person and aggravated common assault.
The appellant was sentenced to a total sentence of 12 months' imprisonment. The appellant was made eligible for parole.
The appeal was heard on 26 September 2019. I reserved my decision. On 3 October 2019 I made the following orders:
1.Leave to appeal is granted on ground 3.
2.The appeal allowed on ground 3.
3.The magistrate's order that the sentence for the offence of aggravated common assault be served cumulatively on the sentence for the offence of aggravated administration of a noxious thing with intent is set aside.
4.The sentences imposed by the magistrate for the offences of aggravated administration of a noxious thing with intent and aggravated assault are to be served concurrently with one another, resulting in a total sentence of 9 months' imprisonment.
5.The appeal is otherwise dismissed.
These are my reasons for making the above orders.

Grounds of appeal

There are four grounds of appeal. The first two grounds of appeal are identical except that each of them applies to a different offence. They state:
The sentence on [relevant charge number and description] was in all the circumstances manifestly excessive particularly having regard to the place that the offending occupies on the scale of seriousness and the personal circumstances of the appellant.
Ground 3…

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 Clarke v Cantatore

Details

AGLC: Clarke v Cantatore [2019] WASC 385
Case: [2019] WASC 385
Decision Date: 28 OCTOBER 2019

CaseChat Overview and Summary

The appellant, Clarke, appealed against the sentences imposed by the Magistrates Court of Victoria. Clarke was convicted of administering a noxious thing, in this case a noxious liquid, and of aggravated common assault. The sentences imposed were imprisonment for two years for the aggravated administration of a noxious thing and imprisonment for 12 months for the aggravated common assault. The sentences were ordered to be served cumulatively, meaning Clarke would serve a total of three years in prison. The total sentence of imprisonment could not be suspended.

The appeal centred on three main legal issues. Firstly, whether the individual sentences were manifestly excessive. Secondly, whether the magistrate erred in concluding that the sentences of imprisonment should be ordered to be served cumulatively. Lastly, whether the magistrate erred in concluding that the total sentence of imprisonment could not be suspended.

The court found that the individual sentences were not manifestly excessive. The court considered the seriousness of the offences, Clarke's criminal history, and the need for general and specific deterrence. The court held that the magistrate was correct in ordering the sentences to be served cumulatively, as the offences were of a serious nature and involved the use of a noxious substance. The court also held that the magistrate was correct in concluding that the total sentence of imprisonment could not be suspended, as the nature of the offences warranted a custodial sentence. The appeal was therefore dismissed.

Orders