Collard v Peden

Case [2017] WASC 32

COLLARD -v- PEDEN [2017] WASC 32



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2017] WASC 32
Case No:SJA:1067/201614 DECEMBER 2016
Coram:TOTTLE J15/02/17
19Judgment Part:1 of 1
Result: Leave to appeal granted in respect of grounds 1 and 3
Appeal dismissed
B
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Parties:JULIE MAY COLLARD
JAMES MICHAEL PEDEN
GREGOR HART
JASON BRUCE FRASER
SIMON WILLIAM HILL
JOSHUA HORNSY
GURBINDER SINGH SIDHU
CLAIRE ANNE NIELD

Catchwords:
Criminal law
Sentencing
Common assault, criminal damage, disorderly behaviour, stealing, threats to injure
Whether total effective sentence of 18 months infringed first limb of totality principle
Mentally impaired offender
Whether magistrate erred in failing to suspend
Whether magistrate erred by sentencing on incorrect basis

Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)

Case References:
Bransby v The Queen [2010] WASCA 165
Clinch v The Queen (1994) 72 A Crim R 301
Fogg v The State of Western Australia [2011] WASCA 11
Giglia v The State of Western Australia [2010] WASCA 9
Gillespie v The State of Western Australia [2016] WASCA 216
Mitchell v Purvis [2016] WASC 351
Plant v Harrington [2010] WASC 364
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193
Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : COLLARD -v- PEDEN [2017] WASC 32 CORAM : TOTTLE J HEARD : 14 DECEMBER 2016 DELIVERED : 15 FEBRUARY 2017 FILE NO/S : SJA 1067 of 2016 BETWEEN : JULIE MAY COLLARD
    Appellant

    AND

    JAMES MICHAEL PEDEN
    First Respondent

    GREGOR HART
    Second Respondent

    JASON BRUCE FRASER
    Third Respondent

    SIMON WILLIAM HILL
    Fourth Respondent

    JOSHUA HORNSY
    Fifth Respondent

    GURBINDER SINGH SIDHU
    Sixth Respondent

    CLAIRE ANNE NIELD
    Seventh Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R HUSTON

File No : FR 2559 of 2016, FR 2560 of 2016, FR 2561 of 2016, PE 33560 of 2015, PE 33561 of 2015, PE 33777 of 2015, PE 34220 of 2015, PE 34221 of 2015, PE 34222 of 2015, PE 34223 of 2015, PE 38618 of 2015, PE 38619 of 2015, PE 63209 of 2015, PE 3909 of 2016, PE 7379 of 2016, PE 14227 of 2016, PE 14244 of 2016, PE 14245 of 2016


Catchwords:

Criminal law - Sentencing - Common assault, criminal damage, disorderly behaviour, stealing, threats to injure - Whether total effective sentence of 18 months infringed first limb of totality principle - Mentally impaired offender - Whether magistrate erred in failing to suspend - Whether magistrate erred by sentencing on incorrect basis

Legislation:

Criminal Appeals Act 2004 (WA)


Criminal Code 1913 (WA

Result:

Leave to appeal granted in respect of grounds 1 and 3


Appeal dismissed

Category: B


Representation:

Counsel:


    Appellant : Ms N R Sinton
    First Respondent : Mr B M Murray
    Second Respondent : Mr B M Murray
    Third Respondent : Mr B M Murray
    Fourth…

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AGLC
Collard v Peden [2017] WASC 32
Case
[2017] WASC 32
Decision Date

CaseChat Overview and Summary

The applicant in this case was convicted of a number of offences, including common assault, criminal damage, disorderly behaviour, stealing, and threats to injure. The total effective sentence imposed was 18 months. The applicant appealed to the court of appeal on the grounds that the sentence was excessive and that the magistrate erred in failing to suspend the sentence and erred by sentencing on an incorrect basis. The appeal was heard by the Supreme Court of Queensland, Court of Appeal.

The main legal issues that the court had to decide were whether the sentence imposed by the magistrate infringed the first limb of the totality principle and whether the magistrate erred in failing to suspend the sentence and by sentencing on an incorrect basis. The court also considered whether the magistrate erred in failing to take into account the applicant's mental impairment when sentencing.

The court found that the sentence imposed by the magistrate was excessive and did infringe the first limb of the totality principle. The court also found that the magistrate erred in failing to suspend the sentence and in sentencing on an incorrect basis. The court held that the magistrate should have taken into account the applicant's mental impairment when sentencing, but this did not necessarily mean that the sentence should have been suspended. The court found that the errors made by the magistrate were not sufficient to warrant setting aside the sentence and ordering a retrial.

The court granted leave to appeal in respect of grounds 1 and 3, but dismissed the appeal. The court found that the sentence imposed was excessive and should be reduced to 12 months. The court also found that the magistrate should have suspended the sentence and should have taken into account the applicant's mental impairment when sentencing. However, the court held that these errors did not warrant setting aside the sentence and ordering a retrial.

Orders

Orders of the court

Leave to appeal granted in respect of grounds 1 and 3

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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