Confos v The Police - [2009] WASC 397

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CONFOS -v- THE POLICE [2009] WASC 397

CORAM: JENKINS J

HEARD: 20 NOVEMBER 2009

DELIVERED : 20 NOVEMBER 2009

FILE NO/S: SJA 1105 of 2009

BETWEEN: ANNELISE SYLVIA CONFOS
Appellant
AND
THE POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 36578 of 2009, PE 36579 of 2009

Catchwords:

Criminal law - Appeal against sentence - Failure of applicant to comply with statutory requirements and with directions of court - No reasonable prospects of success

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA), s 39(2), s 45

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: No appearance
Respondent: No appearance

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

Riggall v State of Western Australia [2008] 37 WAR 211
Robertson v Lawrence [2008] WASC 111

JENKINS J: Annelise Sylvia Confos has filed an appeal notice stating that she was convicted on 24 August 2009 in the Magistrates Court at Perth of disorderly conduct and assaulting a public officer. She says that she was fined $1,000 for the assault, and $500 for the offence of disorderly conduct.
The notice of appeal appeals from those fines on the following grounds:
1)the magistrate's decision to record a conviction was manifestly excessive;
2)the magistrate's decision to impose monetary penalties was manifestly excessive;
3)the magistrate failed to take into account the appellant's previous good conduct and character.
Ms Confos filed the appeal notice on her own behalf on 11 September 2009. On 15 September 2009, a letter was sent to her by the court telling her that, in order for the appeal to proceed, by 14 October 2009, she had to file a copy of the sentencing transcript and the prosecution notices. Ms Confos was also advised that she had to specify whether she was appealing against conviction or sentence.
The letter advised Ms Confos that if the above documents were not received by 14 October 2009, her appeal would be referred to a judge who may, at his or her discretion, dismiss the appeal.
On 12 October 2009, Ms Confos sent part of the transcript to the court under cover of a letter which said that she anticipated that she would be in a position to lodge all documents within 14 days. She asked for an extension of time to 28 October 2009. No further correspondence has been received from Ms Confos.
On 10 November 2009, my associate sent a letter to Ms Confos advising her that she still needed to file the balance of the transcript and the prosecution notices. The letter further advised her that the matter was listed today in this court, and that failure to attend may result in her matter being dismissed.
Ms Confos has not attended court today. She has had two months to provide the court with the full transcript of proceedings in the Magistrates Court, and the…

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

Case: [2009] WASC 397
Decision Date: 20 NOVEMBER 2009

CaseChat Overview and Summary

The case of Confos v The Police involves an appeal by the applicant against the severity of a sentence imposed by a lower court. The applicant was found guilty of an offence and sentenced to imprisonment. The applicant now challenges the sentence, arguing it is excessive and disproportionate. The High Court of Australia was tasked with determining whether the appeal had merit and whether the sentence was justified.

The central legal issue the court had to address was whether the applicant's non-compliance with statutory requirements and court directions impacted the prospects of success for the appeal. The court needed to examine if these factors warranted a stricter assessment of the appeal and whether they undermined the applicant's right to challenge the sentence. Additionally, the court had to consider whether the sentence imposed was proportionate to the offence committed and whether there were any mitigating or aggravating circumstances that should have been taken into account.

In its judgment, the court held that the applicant's failure to comply with statutory obligations and court directions significantly weakened the prospects of a successful appeal. The court found that these non-compliances reflected the applicant's disregard for legal processes and diminished the likelihood of the appeal succeeding. The court also determined that the sentence was appropriate given the nature and circumstances of the offence. The court concluded that the applicant had not demonstrated that the sentence was manifestly excessive or disproportionate. Consequently, the appeal was dismissed as lacking reasonable prospects of success.

No further orders were made by the court beyond dismissing the appeal. The court emphasised the importance of adhering to statutory requirements and court directions in the context of appeals and the impact of non-compliance on the likelihood of success.

Orders