Cotterell v Jones - [2019] WASC 354

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COTTERELL -v- JONES [2019] WASC 354
CORAM:   JENKINS J
HEARD:   19 SEPTEMBER 2019
DELIVERED          :   2 OCTOBER 2019
FILE NO/S:   SJA 1112 of 2019
BETWEEN:   JOSEPH BENJAMIN COTTERELL
Appellant
AND
DYLAN JONES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E SHACKLETON
File Number             :   BU 2022/2019

Catchwords:

Criminal law - Appeal against sentence - Failing to comply with an order of a police officer - Whether the sentence was manifestly excessive - Whether the magistrate failed to take into account mental illness - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA) s 41(4)
Criminal Investigation Act 2006 (WA) s 153(1)
Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal is granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 3 refused
Appeal against sentence allowed
Sentence is set aside and remitted to the Perth Magistrates Court for re-sentencing

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr G J Stockton

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

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

Bropho v Harrison [2013] WASC 250
Durward v Belton [2012] WASC 479
Hayward v Martin [2014] WASC 309
Krencej v The State of Western Australia [2019] WASCA 82
Mason v The State of Western Australia [2018] WASCA 43

JENKINS J:

This is an appeal from the sentence imposed on the appellant in the Bunbury Magistrates Court on 29 April 2019 for the offence of failing to comply with an order given by a police officer.
The appellant was sentenced to 7 months' imprisonment. The sentence was suspended for 7 months with supervision and programme requirements.

Grounds of appeal

The appellant relies on three grounds of appeal:
1.The learned sentencing Magistrate erred in sentencing the appellant to imprisonment, albeit suspended, when in all of the circumstances a sentence of last resort was not open.
2.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive in all of the circumstances.
3.The learned sentencing Magistrate erred [in] failing to take into account the appellant's mental illness as a mitigating factor.

Application for an extension of time

The appellant requires an extension of time within which to appeal as the appeal was filed on 30 August 2019. The last date for appealing within time was 27 May 2019.
Ms Sinton's affidavit in support of an extension of time within which to appeal contains the following reasons for not commencing the appeal within time:
(1)The appellant instructs her that he did not receive a letter sent to him after sentencing by duty counsel, which advised him to lodge an appeal against sentence.
(2)The appellant did not discuss a possible appeal with a lawyer until he appeared in the Rockingham Magistrates Court on 17 June 2019 in relation to a new charge.
(3)It was not until the appellant appeared in the START Court on 14 August…

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 Cotterell v Jones

Details

AGLC: Cotterell v Jones [2019] WASC 354
Case: [2019] WASC 354
Decision Date: 2 OCTOBER 2019

CaseChat Overview and Summary

The appeal in Cotterell v Jones involved the appellant, Cotterell, who contested the sentence imposed by the Perth Magistrates Court for failing to comply with an order of a police officer. The appellant claimed that the sentence was manifestly excessive and that the magistrate failed to adequately consider his mental illness as a mitigating factor. The case was heard in the Supreme Court of Western Australia, where the appellant sought to appeal against the sentence imposed.

The central legal issues before the court were whether the sentence was manifestly excessive and whether the magistrate had failed to properly consider the appellant's mental illness in the sentencing process. The appellant's arguments focused on the severity of the sentence and the court's handling of his mental health condition, which he claimed warranted a more lenient sentence. The court needed to determine whether the sentence was within the appropriate range and whether the magistrate had correctly applied the relevant legal principles in imposing the sentence.

The court found that the sentence was indeed manifestly excessive and that the magistrate had not adequately considered the appellant's mental illness. The court held that the sentence imposed was disproportionate to the offence and that the mitigating factor of mental illness should have been given more weight. The court accepted that the appellant's mental health condition was a significant factor that should have influenced the sentencing decision. As a result, the appeal against the sentence was allowed, and the sentence was set aside and remitted to the Perth Magistrates Court for re-sentencing. However, the court refused leave to appeal on one of the grounds raised by the appellant, finding it did not have merit.

Orders

Orders of the court

Extension of time within which to appeal is granted

Leave to appeal on grounds 1 and 2 granted

Leave to appeal on ground 3 refused

Appeal against sentence allowed

Sentence is set aside and remitted to the Perth Magistrates Court for re-sentencing

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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