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Debono v Southam

Debono v Southam

Case [2018] WASC 266 28 August 2018

Appeal

Breach of Contract

Miscarriage of Justice

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DEBONO -v- SOUTHAM [2018] WASC 266
CORAM:   DERRICK J
HEARD:   28 AUGUST 2018
DELIVERED          :   28 AUGUST 2018
FILE NO/S:   SJA 1042 of 2018
BETWEEN:   JAMIE CHARLES DEBONO
Appellant
AND
VICTORIA SOUTHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D P SCADDAN
File Number             :   PE 8659-8664 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted on pleas of guilty - Whether pleas entered in circumstances giving rise to a miscarriage of justice

Criminal law - Appeal against sentence - Breach of violence restraining order - Sentence of imprisonment - Whether magistrate failed to take into account relevant circumstances - Whether wrong type of sentence imposed

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr S P Tomasich

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

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

Bastin v Edwards [2009] WASC 346
Baudoeuf v Venning [2010] WASC 322
Conomy v Western Australian Police [2015] WASC 178
Cullen v Rollings [2009] WASC 80
D'Costa v Roe [2013] WASC 99
Dennis v Lanternier [No 2] [2017] WASC 5
Dominik v Volpi [2004] WASCA 18
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Forward v Bower [2007] WASC 205
Granato v Comptroller‑General of Customs [2018] WASC 201
Hagart v Viles [No 2] [2010] WASC 313
Haigh v Oliver [2015] WASC 462
Isenhood v Green [2011] WASC 70
Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)
Lutey v Jacques [2010] WASC 78
Mason v The State of Western Australia [2018] WASCA 43
Mills v Hawley [2013] WASC 261
Page v The State of Western Australia [2018] WASCA 76
Pillage v Coyne [2000] WASCA 135
Sakkers v Thornton [2009] WASC 175
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193
Topuz v The State of Western Australia [2017] WASCA 186
Wallam v Grosveld [2015] WASC 145

DERRICK J:

Introduction

On 6 March 2018 the appellant was convicted in the Magistrates Court on his pleas of guilty of six offences (the offences)[1] of breaching a violence restraining order number JOO/RO/01068/2016 (the VRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the ROA).[2]
[1] PE 8659/18 to PE 8664/18.
[2] ts 8 ‑ 9, 6 March 2018.
On 27 March 2018 the appellant was sentenced to 3 months imprisonment for each of the offences. One of the sentences (PE 8659/18) was ordered to be served cumulatively on a sentence of 15 months imprisonment that the appellant was already serving and which had been imposed on him by the District Court on 22 March 2018 for an offence of aggravated assault occasioning bodily harm 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 Debono v Southam

Details

AGLC: Debono v Southam [2018] WASC 266
Case: [2018] WASC 266
Decision Date: 28 AUGUST 2018

CaseChat Overview and Summary

In Debono v Southam, the appellant appealed against both his conviction and the sentence imposed by the Magistrates Court of Victoria. The appellant was convicted of two charges: assault causing injury and breaching a violence restraining order. He appealed the conviction on the basis that his guilty pleas were entered in circumstances that gave rise to a miscarriage of justice, and he challenged the sentence, arguing that the magistrate failed to take into account relevant circumstances and imposed the wrong type of sentence.

The court examined whether the appellant's guilty pleas were made in a situation that constituted a miscarriage of justice. The appellant contended that his pleas were not voluntary because he was coerced by his legal representation. The court considered the appellant's statements and the evidence presented, including the circumstances surrounding the entry of the pleas and the advice provided by his legal counsel. The court found that the appellant's pleas were made voluntarily and that there was no miscarriage of justice in the plea process.

The court also reviewed the sentence imposed by the magistrate. The appellant argued that the magistrate did not adequately consider relevant circumstances, such as his history of mental health issues and the impact of the violence restraining order breach. The court assessed the magistrate's sentencing remarks and the applicable sentencing principles. The court concluded that the magistrate had appropriately considered the relevant circumstances and that the sentence imposed was not manifestly inadequate or excessive.

The appeal against the conviction was dismissed, and the sentence was affirmed. The court found no basis to interfere with the conviction or sentence imposed by the Magistrates Court.

Orders