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Closter v Humphreys

Closter v Humphreys

Case [2012] WASC 145 27 April 2012

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CLOSTER -v- HUMPHREYS [2012] WASC 145

CORAM: HALL J

HEARD: 27 MARCH 2012

DELIVERED : 27 APRIL 2012

FILE NO/S: SJA 1007 of 2012

BETWEEN: JAYCINTA KATE CLOSTER
Appellant
AND
SARAH EMMA HUMPHREYS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :KA 3812 of 2011

Catchwords:

Criminal law - Sentence - Assault occasioning bodily harm - Appeal from Magistrates Court - Whether 10 months' imprisonment manifestly excessive - turns on own facts

Legislation:

Criminal Code s 317
Liquor Control Act 1998 (WA)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Ms C A McKenzie
Respondent: Ms G M Cleary

Solicitors:

Appellant: McKenzie & McKenzie
Respondent: Director of Public Prosecutions (WA)

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

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duggan v Coelho [2009] WASC 372
Holden v The State of Western Australia [2009] WASCA 50
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McDougall v The State of Western Australia [2009] WASCA 232
Plant v Harrington [2010] WASC 364
Powell v Tickner [2010] WASCA 224
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Scolaro v Shephard (No 2) [2010] WASC 271
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111

HALL J: This is an appeal against sentence. On 22 December 2011 the appellant was sentenced to 10 months' imprisonment following her plea of guilty to one charge of assault occasioning bodily harm contrary to s 317 of the Criminal Code (WA). She now seeks leave to appeal that sentence on a number of grounds. Those grounds relate to a single issue, that is whether the sentence imposed by the magistrate was manifestly excessive.

The facts

The admitted facts were that on or about 12.25 am on 7 October 2011 the appellant was at a licensed premises in Kalgoorlie. She was heavily intoxicated. The complainant was a female crowd controller on duty at the premises.
As a result of the appellant's intoxicated state she was asked to leave the premises by the complainant. As the appellant was being escorted to the door she broke away and made off in the direction of the toilets. The complainant followed the appellant and 'engaged physically' with her with a view to removing her forcibly from the premises. The appellant was holding a glass stubbie bottle, from which she had previously been drinking.
The appellant resisted the complainant's attempt to seize her, and there was a brief struggle. Security camera footage of the incident indicates that it lasted approximately eight seconds. During this time the appellant threw up her arms and this resulted in the bottle that she was holding in one hand coming into contact…

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 Closter v Humphreys

Details

AGLC: Closter v Humphreys [2012] WASC 145
Case: [2012] WASC 145
Decision Date: 27 APRIL 2012

CaseChat Overview and Summary

Closter v Humphreys involved the appellant, Closter, appealing against his conviction and sentence imposed by the Magistrates Court for assault occasioning bodily harm. The dispute centred on whether the ten-month imprisonment term imposed on Closter was manifestly excessive, taking into account the specific facts of the case. The court was tasked with determining if the sentence was disproportionate given the nature and circumstances of the offence, and whether there were any mitigating or aggravating factors that warranted a departure from the standard sentencing approach.

The primary legal issue was whether the sentence imposed by the Magistrates Court was manifestly excessive. This required the court to consider the principles of sentencing outlined in the relevant legislation, as well as any relevant case law. The court needed to assess the proportionality of the sentence in light of the offence's severity, the offender's culpability, and the broader principles of justice and deterrence. The court also had to consider whether the Magistrates Court had adequately balanced the various factors in arriving at the sentence.

In its decision, the court meticulously reviewed the evidence and the arguments presented by both parties. It concluded that while the offence was serious, the sentence imposed was not manifestly excessive. The court found that the Magistrates Court had appropriately considered the relevant factors, including the nature of the assault, the degree of harm caused, and any mitigating circumstances. The court also highlighted the importance of adhering to the principles of proportionality and individualised sentencing. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders