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Crossley v Cole

Crossley v Cole

Case [2006] WASC 43 15 March 2006

Sentencing

Miscarriage of Justice

Alternatives to Imprisonment

Criminal Law

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CROSSLEY -v- COLE [2006] WASC 43

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 43
Case No:	SJA:1093/2005	Heard:	30 JANUARY 2006
Coram:	SIMMONDS J	Delivered:	15/03/06
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	DEAN PETER CROSSLEY PAULINE COLE
Catchwords:	Criminal law and procedure Sentencing Breach of police order Assaulting a public officer Previous criminal history Counsel unaware of suspended imprisonment order Counsel failed to request adjournment Unlikely to affect the outcome of the sentencing process Whether undue weight given to seriousness of offence Whether alternatives to imprisonment considered Whether mitigating factors weighed
Legislation:	Criminal Appeals Act 2004 (WA), s 8(1)(b) Sentencing Act 1995 (WA), s 35(1), s 80
Case References:	Ali v The Queen (2005) 79 ALJR 662 Allen v Gittos (1995) 13 WAR 560 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Cox v Whitehead & Ors [1999] WASCA 277 Crossley v Cole [2005] WASC 249 Dangerfield v Commissioner of Police [2000] WASCA 375 Furtak v Timmers [2001] WASCA 65 Hall v The Queen [1999] WASCA 225 James v The Queen [2000] WASCA 100 Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995 McSwan v The State of Western Australia [2005] WASCA 128 Mustafa v The Queen [2001] WASCA 192 R v Juric [2003] QCA 132 TKWJ v The Queen (2002) 212 CLR 124 Warrell v Kay (1995) 83 A Crim R 493 White v Taylor [2001] WASCA 350 Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980 Dao v The Queen, unreported; CCA SCt of WA; Library No 980152; 22 January 1999 Delacey v The Queen, unreported; CCA SCt of WA; Library No 7687; 31 May 1989 King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 R v Gallagher (1998) 2 VLR 671 R v Holcroft [1997] 2 Qd R 392 R v Marston (1993) 60 SASR 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CROSSLEY -v- COLE [2006] WASC 43 CORAM : SIMMONDS J HEARD : 30 JANUARY 2006 DELIVERED : 15 MARCH 2006 FILE NO/S : SJA 1093 of 2005 BETWEEN : DEAN PETER CROSSLEY

Appellant

AND

PAULINE COLE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M D WHEELER

File No : JO 4735 of 2005, JO 7130 of 2005

Catchwords:

Criminal law and procedure - Sentencing - Breach of police order - Assaulting a public officer - Previous criminal history - Counsel unaware of suspended imprisonment order - Counsel failed to request adjournment - Unlikely to affect the outcome of the sentencing process - Whether undue weight given to seriousness of offence - Whether alternatives to imprisonment considered - Whether mitigating factors weighed

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s…

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 Crossley v Cole

Details

AGLC: Crossley v Cole [2006] WASC 43
Case: [2006] WASC 43
Decision Date

CaseChat Overview and Summary

The appeal in this case is from the sentences imposed by Magistrate Wheeler at the Magistrates Court of Western Australia. The appellant, Dean Peter Crossley, was sentenced to a term of imprisonment for the offence of assaulting a police officer and a fine for the offence of breaching a police order. The respondent, Pauline Cole, is the state director of public prosecutions. The appeal raises two issues. The first concerns whether there was a miscarriage of justice due to the appellant's counsel not being aware of the existence of a suspended imprisonment order. The second concerns whether the learned Magistrate erred in the imposition of a term of imprisonment for the offence of assaulting a police officer by giving undue weight to the seriousness of the offence, failing to consider alternative dispositions to imprisonment, and failing to give sufficient weight to mitigating factors. The appeal was dismissed. In relation to the first issue, the court found that while there was a material irregularity in the solicitor's failure to seek a short adjournment for the purposes of seeking further instructions from his client, it was unlikely that this irregularity affected the outcome of the sentencing process. In relation to the second issue, the court found that while the sentence imposed was at the higher end of the scale, it was not so high as to be outside the exercise of appropriate sentencing discretion or to indicate undue weight had been given to the nature of the offence. The court also found that the learned Magistrate had taken into account the mitigating circumstances for the offender and that the requirements of s 35(1) of the Sentencing Act had been met.

Orders