DeBono v Barker - [2019] WASC 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DEBONO -v- BARKER [2019] WASC 303
CORAM:   ALLANSON J
HEARD:   19 AUGUST 2019
DELIVERED          :   19 AUGUST 2019
PUBLISHED           :   22 AUGUST 2019
FILE NO/S:   SJA 1017 of 2019
BETWEEN:   JAMIE CHARLES DEBONO
Appellant

AND

CHAS BARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S WILSON
File Number             :   PE 49300 of 2017

Catchwords:

Criminal law - Appeal against sentence imposed after trial of issues - Where applicant disputing material facts on which sentence based - Where decision based on credibility of witness - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 338B

Result:

Leave to appeal on all grounds refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T B L Scutt

Solicitors:

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

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

Nyoni v Patterson [2012] WASCA 171

ALLANSON J:

(This judgment was delivered extemporaneously on 19 August 2019. It has been edited to include references and correct the date of the charges.)

The appellant Mr DeBono was charged on 22 August 2017 with making a threat to unlawfully injure a person.[1] On 12 October 2018, he pleaded guilty. On 6 February 2019, Mr DeBono was sentenced to imprisonment for 6 months and one day. Two other sentences, for possession of cannabis and trespass, were ordered to be served concurrently.
[1] Criminal Code 1913 (WA) s 338B. The offence is a crime punishable by imprisonment for 3 years.
The sentencing magistrate was told that Mr DeBono had been in custody, for all but five weeks, since 1 January 2017. On the information before the sentencing magistrate, Mr DeBono had also been sentenced to imprisonment in the District Court on 22 March 2018, backdated to 14 January 2017.[2] The sentencing magistrate backdated the sentence he imposed to 1 January 2017 so that it was largely, if not wholly, concurrent with the sentence imposed by the District Court. His Honour recognised that the sentence he was imposing had already been wholly served.
[2] ts 34 ‑ 37.
On 12 February 2019, Mr DeBono filed an appeal notice appealing against both conviction and sentence on the charge of threat to harm. Ground 1 of the grounds of appeal, however, states:
I am not denying the charge. I am denying the trial of issues which I was found guilty of comments that I did not say to the victim.
Ground 1 is consistent with how the charge was dealt with. Mr DeBono pleaded guilty, and admitted threatening the victim. The statement of material facts alleged a threat to rape. Mr DeBono denied that he said what was alleged but admitted making a different threat. There was a trial of the issues on 6 February 2019.
On the trial of the issues, the prosecution called the victim. She said that at about 5.15 pm on 1 January 2017 she was at home with her…

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 DeBono v Barker

Details

AGLC: DeBono v Barker [2019] WASC 303
Case: [2019] WASC 303
Decision Date: 22 AUGUST 2019

CaseChat Overview and Summary

The case of DeBono v Barker was heard by the court, where the applicant, DeBono, appealed against the sentence imposed after the trial of issues. DeBono disputed material facts upon which the sentence was based, with the decision turning on the credibility of the witnesses. This appeal brought before the court the critical issue of whether the sentence was appropriate, given the contested facts and the weight placed on the witness testimonies.

The court was required to decide whether the sentence imposed was appropriate, considering the applicant's contention that the material facts were inaccurately determined. The legal issue at the heart of the appeal was whether the trial judge correctly assessed the credibility of the witnesses and whether the sentence was commensurate with the evidence presented. The court had to weigh the evidence and the credibility of the witnesses to determine whether the sentence was just and fair.

In its reasoning, the court found that the trial judge had appropriately assessed the credibility of the witnesses and that the sentence was commensurate with the evidence presented. The court held that the decision was based on the facts and that the applicant's appeal did not provide sufficient grounds to warrant a different outcome. Consequently, the appeal was dismissed, and leave to appeal on all grounds was refused. The court's decision stood as final, with no further appeal possible.

Orders

Orders of the court

Leave to appeal on all grounds refused

Appeal dismissed

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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