Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S WILSON
File Number : BU 1345 of 2020, BU 1892 of 2020, BU 1895 of 2020, BU 1896 of 2020, BU 1897 of 2020
Catchwords:
Criminal law - Appeal against sentence - Whether individual sentences manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 51(2) Criminal Code (WA), s 68, s 70A(2), s 172(2), s 317(1), s 338B(b), s 378, s 409(1)(c), s 417(1) Misuse of Drugs Act 1981 (WA), s 6(2) Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 7(2)(b), s 7(2)(c), s 39
Result:
Leave to appeal out of time granted Leave to appeal on grounds 1, 2 and 4 refused Leave to appeal on ground 3 allowed Appeal allowed Appellant re-sentenced
The appellant seeks leave to appeal, out of time, the sentence imposed, on 21 August 2020, by a magistrate sitting in the Magistrates Court at Bunbury, for one count of being armed in a way that may cause fear, one count of breach of bail, one count of stealing, one count of assault occasioning bodily harm, and one count of making a threat to injure or harm.
The offence of being armed in a way that may cause fear was committed by the appellant…
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 Crotty v Peck
Sign in free to access the full text
Details
AGLC
Crotty v Peck [2021] WASC 51
Case
[2021] WASC 51
Decision Date
CaseChat Overview and Summary
The appellant, Daniel Crotty, appeals against the sentence imposed on him by a magistrate sitting in the Magistrates Court at Bunbury. The appellant pleaded guilty to one count of being armed in a way that may cause fear, one count of breach of bail, one count of stealing, one count of assault occasioning bodily harm, and one count of making a threat to injure or harm. The magistrate sentenced the appellant to a total effective sentence of 18 months' imprisonment, backdated to commence on 20 August 2020. The appellant challenges the sentence on four grounds. In ground 1, the appellant claims the sentence for the offence of being armed in a way that may cause fear was manifestly excessive. In ground 2, the appellant claims the sentence for the offence of assault occasioning bodily harm was manifestly excessive as to type of sentence. In ground 3, the appellant claims the total effective sentence infringed the first limb of the totality principle. In ground 4, the appellant claims an error in his Honour's treatment of factors that are said to be mitigating, which factors relate only to the offence of assault occasioning bodily harm. The court granted leave to appeal out of time, refused leave to appeal on grounds 1, 2 and 4, and allowed leave to appeal on ground 3. The court allowed the appeal on ground 3 and reduced the sentence on the charge of being armed so as to cause fear to 4 months' immediate imprisonment. The court reduced the total effective sentence of immediate imprisonment to 16 months, backdated to 20 August 2020, with eligibility for parole. The court did not impose a different sentence in respect of any of the sentences except in respect of Charge BU 1345/2020.