Crotty v Peck

Case [2021] WASC 51


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CROTTY -v- PECK [2021] WASC 51

CORAM:   SMITH J

HEARD:   19 FEBRUARY 2021

DELIVERED          :   19 FEBRUARY 2021

PUBLISHED           :   26 FEBRUARY 2021

FILE NO/S:   SJA 1086 of 2020

BETWEEN:   DANIEL CROTTY

Appellant

AND

GEOFFREY PECK

First Respondent

KELLY GROOTVELD

Second Respondent

ON APPEAL FROM:

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

Category:    B

Representation:

Counsel:

Appellant : In person
First Respondent : Ms G N Beggs
Second Respondent : Ms G N Beggs

Solicitors:

Appellant : In person
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)

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

Baker v The State of Western Australia [2020] WASCA 117

Cleminson v The State of Western Australia [2017] WASCA 58

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DKN v The State of Western Australia [2018] WASCA 87

Drage v The State of Western Australia [2021] WASCA 6

Duncan v The State of Western Australia [2018] WASCA 154

Hayward v Martin [2014] WASC 309

Johnson v The Queen [2004 HCA 15; (2004) 78 ALJR 616

Kabambi v The State of Western Australia [2019] WASCA 44

King v The State of Western Australia [2013] WASCA 131

Krencej v The State of Western Australia [2019] WASCA 82

Mill v The Queen [1988] HCA 70; (1988]) 166 CLR 59

Richardson v Pickett [2008] WASC 203

Spirovski v The State of Western Australia [2017] WASCA 230

The State of Western Australia v AHD [2021] WASCA 13

Tunney v The State of Western Australia [2013] WASCA 286

SMITH J:

The appeal, the grounds of appeal and the result

  1. 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.

  2. The offence of being armed in a way that may cause fear was committed by the appellant…

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Crotty v Peck [2021] WASC 51
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[2021] WASC 51
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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.

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