COHEN -v- CURCHIN [2008] WASC 8

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 8
Published:	29/01/2008
Case No:	SJA:1086/2007	Heard:	18 DECEMBER 2007
Coram:	MARTIN CJ	Delivered:	17/12/07
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed New sentence imposed
Category:	B
PDF Version

Parties:	JEREMIAH PAUL COHEN SHANNON LEE CURCHIN
Catchwords:	Appeal Appeal against sentence Appellant suffers from mental illness Whether magistrate erred in not reducing sentence by one-third Appellate function of a single judge of the Supreme Court under the Criminal Appeals Act 2004 (WA)
Legislation:	Criminal Appeals Act 2004 (WA), s 14, s 31(5) Criminal Code (WA), s 301 Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 35 Sentencing Act 1995 (WA), s 4 Sentence Administration Act 2003 (WA), s 22, s 23 Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2
Case References:	Forward v Bower [2007] WASC 205 O'Connell v Welsh [2005] WASCA 11 Withnell v Walker [2005] WASCA 8 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : COHEN -v- CURCHIN [2008] WASC 8 CORAM : MARTIN CJ HEARD : 18 DECEMBER 2007 DELIVERED : 18 DECEMBER 2007 PUBLISHED : 30 JANUARY 2008 FILE NO/S : SJA 1086 of 2007 BETWEEN : JEREMIAH PAUL COHEN

Appellant

AND

SHANNON LEE CURCHIN

Respondent

ON APPEAL FROM:

For File No : SJA 1086 of 2007

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE W G TARR

File No : PE 42047 of 2007

Catchwords:

Appeal - Appeal against sentence - Appellant suffers from mental illness - Whether magistrate erred in not reducing sentence by one-third - Appellate

(Page 2)

function of a single judge of the Supreme Court under the Criminal Appeals Act 2004 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 31(5)

Criminal Code (WA), s 301
Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 35
Sentencing Act 1995 (WA), s 4
Sentence Administration Act 2003 (WA), s 22, s 23
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2

Result:

Appeal allowed

New sentence imposed

Category: B

Representation:

Counsel:

Appellant : Ms K J Farley

Respondent : Mr A D Sullivan

Solicitors:

Appellant : Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

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

Forward v Bower [2007] WASC 205
O'Connell v Welsh [2005] WASCA 11
Withnell v Walker [2005] WASCA 8
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

(Page 3)

MARTIN CJ

(This judgment was delivered extemporaneously on 18 December 2007 and has been edited from the transcript)

1 Jeremiah Paul Cohen appeals to the Court against a sentence imposed in the Magistrates Court for the offence of unlawful wounding, to which he pleaded guilty at the first available opportunity. Mr Cohen is 19 years of age. The offence to which…

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 Cohen v Curchin

Details

AGLC: Cohen v Curchin [2008] WASC 8
Case: [2008] WASC 8
Decision Date: 18 December 2007

CaseChat Overview and Summary

The appeal before the Supreme Court of Western Australia concerns the appellant's sentence, imposed following a conviction for assault occasioning bodily harm. The appellant, Cohen, argued that the magistrate erred in not reducing his sentence by one-third due to his mental illness. The appeal was heard by a single judge of the Supreme Court, exercising appellate jurisdiction under the Criminal Appeals Act 2004 (WA). The legal issue before the court was whether the magistrate appropriately considered the appellant's mental illness when imposing the sentence and, if not, whether the appellate court should reduce the sentence by one-third.

The court considered that the magistrate did not adequately consider the impact of Cohen's mental illness on his culpability and the appropriate sentence. The single judge held that the magistrate's failure to reduce the sentence by one-third due to Cohen's mental illness was an error in principle. The appellate court found that Cohen's mental illness significantly impacted his ability to control his behaviour at the time of the offence, and this factor warranted a reduction in the sentence. The court also noted that the gravity of the offence and the need for deterrence were balanced against Cohen's mental health issues.

In light of the court's findings, the appeal was allowed, and the original sentence was quashed. The single judge imposed a new sentence, taking into account Cohen's mental illness and reducing it by one-third as required. The final orders of the court were to allow the appeal, quash the original sentence, and impose a new sentence that appropriately reflected the mitigating factors of Cohen's mental illness.

Orders

Orders of the court

1. Appeal allowed.

2. New sentence imposed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.