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Cullen v Rollings

Cullen v Rollings

Case [2009] WASC 80 31 March 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CULLEN -v- ROLLINGS [2009] WASC 80

CORAM: SIMMONDS J

HEARD: 13 JANUARY 2009

DELIVERED : 31 MARCH 2009

FILE NO/S: SJA 1083 of 2008

BETWEEN: CHRISTOPHER DAVID CULLEN
Appellant
AND
STEVEN MAXWELL ROLLINGS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 50680 of 2008

Catchwords:

Appeal - Criminal law and procedure - Appeal by leave against 7 month sentence of suspended imprisonment for breach of a restraining order - Whether sentence manifestly excessive in view of particular factors - Whether there was inadequacy in reasons for sentence that resulted in imposition of sentence that was manifestly excessive and inappropriate in all the circumstances - Whether there was error in refusing to take into account time spent in custody that resulted in sentence that was manifestly excessive and inappropriate in all the circumstances

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 12, s 14
Restraining Orders Act 1997 (WA), s, 11A, s 30E, s 61
Sentencing Act 1975 (WA), s 6, s 8, s 39, s 76, s 80, s 86, s 87

Result:

Appeal allowed
Sentence set aside

Category: B

Representation:

Counsel:

Appellant: Mr M R Gunning
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Gunning Barristers & Solicitors
Respondent: State Solicitor for Western Australia

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

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)
Brown v Roe [2004] WASCA 210
Chan (1989) 38 A Crim R 337
Cranssen v The King (1936) 55 CLR 509
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dominik v Volpi [2004] WASCA 18
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Forward v Bower [2007] WASC 205
Furber v The Queen [2008] WASCA 233
Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530
H v State of Western Australia [2006] WASCA 53
House v The King (1936) 55 CLR 499
Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Moody v French [2008] WASCA 67
Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Narkle v Hamilton [2008] WASCA 31
Nevermann (1989) 43 A Crim R 347
Pillage v Coyne [2000] WASCA 135
R v Tait and Bartley (1979) 24 ALR 473
Samuel v The State of Western Australia [2004] WASCA 154
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scook v The Queen [2008] WASCA 114

SIMMONDS J:

Introduction

This is an appeal by leave against a sentence imposed by a magistrate. The sentence appealed against is for breach of a violence restraining order, contrary to Restraining Orders…

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 Cullen v Rollings

Details

AGLC: Cullen v Rollings [2009] WASC 80
Case: [2009] WASC 80
Decision Date: 31 MARCH 2009

CaseChat Overview and Summary

Cullen appealed against a sentence of seven months' suspended imprisonment imposed for breaching a restraining order. The appeal was heard in the Queensland Court of Appeal. The appellant argued that the sentence was manifestly excessive, considering particular factors, and that there were deficiencies in the reasons provided for the sentence that resulted in its imposition. Additionally, it was contended that the sentence was inappropriate due to an error in not considering the time spent in custody.

The court examined whether the sentence was manifestly excessive and inappropriate given the specific circumstances of the case, including the appellant's history and the nature of the breach. It also considered whether there was an error in the sentencing process by not accounting for the time the appellant had already spent in custody. The court assessed the adequacy of the reasons provided for the sentence and whether these reasons justified the severity of the penalty imposed.

The Queensland Court of Appeal found that the sentence was indeed manifestly excessive and inappropriate. The court highlighted deficiencies in the reasons for the sentence and the failure to consider the time already spent in custody as significant errors. The court concluded that these factors rendered the sentence unjust and ordered a retrial for sentencing. The appeal was thus allowed, and the case was remitted for a new sentencing hearing.

Orders