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Dennis v Lanternier [No 2]

Dennis v Lanternier [No 2]

Case [2017] WASC 5 12 January 2017

Appeal

Breaches of violence restraining order

Sentencing

Mistaken Consideration

Pleas of Guilty

Criminal Law

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DENNIS -v- LANTERNIER [No 2] [2017] WASC 5

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 5
Case No:	SJA:1068/2016	Heard:	13 DECEMBER 2016
Coram:	JENKINS J	Delivered:	12/01/17
No of pages:	44	Judgment Part:	1 of 1
Result:	Extension of time and leave to appeal granted on grounds 2 and 5 Appeal dismissed
Category:	B
PDF Version

Parties:	PETER GEORGE DENNIS LOUIS GERMAINE LANTERNIER FAYE LEANNE CLAYSON TRACEY MOYNA NESBITT
Catchwords:	Criminal law Appeal against sentence Breaches of violence restraining order Whether aggregate sentence was manifestly excessive Whether magistrate failed to take into account relevant matters including the pleas of guilty and the appellant's personal circumstances Whether the magistrate erred in taking into account an irrelevant consideration Whether there was an error in recording the aggregate sentence
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2) Restraining Orders Act 1997 (WA), s 61(1) Sentencing Act 1995 (WA), s 11, s 9AA(5), s 8(4)
Case References:	Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DENNIS -v- LANTERNIER [No 2] [2017] WASC 5 CORAM : JENKINS J HEARD : 13 DECEMBER 2016 DELIVERED : 12 JANUARY 2017 FILE NO/S : SJA 1068 of 2016 BETWEEN : PETER GEORGE DENNIS

Appellant

AND

LOUIS GERMAINE LANTERNIER

FAYE LEANNE CLAYSON

TRACEY MOYNA NESBITT

Respondents

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S RICHARDSON

File No : RO 6847 of 2015, RO 6854 of 2015, RO 6855 of 2015, RO 7009 of 2015, RO 7010 of 2015, RO 7011 of 2015, RO 7012 of 2015, RO 7013 of 2015, RO 7014 of 2015, PE 21660 of 2016, PE 21661 of 2016, PE 21662 of 2016, PE 21663 of 2016, RO 403 of 2016, RO 404 of 2016, RO 405 of 2016, RO 406 of 2016, RO 407 of 2016, RO 2247 of 2016, RO 2248 of 2016, RO 2249 of 2016

Catchwords:

Criminal law - Appeal against sentence - Breaches of violence restraining order - Whether aggregate sentence was manifestly excessive - Whether magistrate failed to take into account relevant matters including the pleas of guilty and the appellant's personal circumstances - Whether the magistrate erred in taking into account an irrelevant consideration - Whether there was an error in recording the aggregate sentence

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)

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 Dennis v Lanternier [No 2]

Details

AGLC: Dennis v Lanternier [No 2] [2017] WASC 5
Case: [2017] WASC 5
Decision Date: 12 JANUARY 2017

CaseChat Overview and Summary

The case of Dennis v Lanternier [No 2] involved an appeal against a sentence handed down by a magistrate for multiple breaches of a violence restraining order. The appellant, Dennis, argued that the aggregate sentence was manifestly excessive and that the magistrate had failed to consider several relevant factors. Among these factors were Dennis's pleas of guilty and his personal circumstances. Additionally, Dennis contended that the magistrate had erred in considering an irrelevant factor and that there was a mistake in recording the aggregate sentence.

The court had to determine several legal issues, including whether the aggregate sentence was manifestly excessive. This required the court to examine if the magistrate had failed to take into account the pleas of guilty and the appellant's personal circumstances. Furthermore, the court needed to decide if the magistrate had erred in considering an irrelevant factor and whether there was an error in recording the aggregate sentence.

In addressing the appeal, the court found that the magistrate had failed to consider some relevant factors, particularly the pleas of guilty and the appellant's personal circumstances. However, the court also determined that the sentence, while potentially debatable, was not manifestly excessive. The court found no evidence that the magistrate had considered an irrelevant factor and concluded that any error in recording the aggregate sentence was not sufficient to warrant an appeal. Consequently, the appeal was dismissed, but the court granted an extension of time and leave to appeal on specific grounds.

Orders

Orders of the court

Extension of time and leave to appeal granted on grounds 2 and 5

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dennis v Lanternier [No 2] [2017] WASC 5

Most Recent Citation

Debono v Southam [2018] WASC 266

Cases citing this decision · 12 of 12 shown

Thompson v WA Police
[2025] WASC 466

…[22] Dennis v Lanternier (No 2) [2017] WASC 5 [150] (Jenkins J).…
Thompson v WA Police
[2024] WASC 476 Para 2

…(4)an immediate sentence of 7 months' imprisonment imposed for a serious breach of s 61(1) has been upheld on appeal. [54] Dennis v Lanternier [No 2] [2017] WASC 5 [150].…
Marich v WA Police
[2024] WASC 173 Para 2

…[2015] WASC 145; (2015) A Crim R 317. [37] Briggs v Houlihan [2018] WASC 301. [38] Stockley v Bailey [2020] WASC 193. [39] Dennis v Lanternier [No 2] [2017] WASC 5.…
Panetta v Reid
[2021] WASC 436 Para 6

…v Sloane [6] and Sellenger v Turner .[7] [2] Forward v Bower [2007] WASC 205. [3] Rogers v Hitchcock [2015] WASC 102. [4] Dennis v Lanternier [No 2] [2017] WASC 5. [5] Briggs v Houlihan [2018] WASC 301. [6] Smartt v Sloane [2019] WASC 35. [7] Sellenger v Turner [2021] WASC 308.…
Sellenger v Turner
[2021] WASC 308 Para 6

…] .[16] Thirdly, the decision of Allanson J in Smartt v Sloane [2019] WASC 35. [15] Musgrove v Millard [2012] WASC 60. [16] Dennis v Laternier [No 2] [2017] WASC 5.…
Stockley v Bailey
[2020] WASC 193 Para 6

…ct.[33] Sentences of more than 7 months' imprisonment for serious breaches of s 61(1) have been upheld on appeal.[34] [32] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [33] Dennis v Lanternier [No 2] [150]. [34] See Dillon v The State of Western Australia [2020] WASCA 24; Howell v Davies [2019] WASC 220; Salk…
Gray v Franken
[2020] WASC 120 Para 2

…pellant's offending demonstrates repeated contempt for the welfare of the protected person, and orders of the Court. [4] Dennis v Lanternier [No 2] [2017] WASC 5. [5] Howell v Davies [2019] WASC 220. [6] Weaver v Biggs [2019] WASC 333. [7] Bernard v Williams [2015] WASC 182. [8] Day v Millson [2015] WASC 183. [9…
Burton v Steer
[2019] WASC 299 Para 12

…nton [74] and Smartt v Sloane .[75] I have considered these sentencing authorities and the cases referred to therein. [64] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [65] Musgrove v Millard [2012] WASC 60. [66] Corrigan v Kirkman [2011] WASC 254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2…
Smartt v Sloane
[2019] WASC 35 Para 3

…they can breach them without suffering any real consequence then there will be little incentive to be compliant. [16] [14] Dennis v Lanternier [No 2] [2017] WASC 5 [150]. [15] Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27[13]; Rogers v Hitchcock [2015] WASC 120 [46]. [16] Rogers v Hitchcock [2015] WAS…
Briggs v Houlihan
[2018] WASC 301 Para 4

…(d)an immediate sentence of 7 months' imprisonment imposed for a serious breach of s 61(1) has been upheld on appeal. [37] Dennis v Lanternier [No 2] [2017] WASC 5. [38] Dennis v Lanternier [No 2] , [150].…
Debono v Southam
[2018] WASC 266 Para 10

…then the court needs to deal with those matters in a serious manner having regard to the seriousness of the offences. [31] Dennis v Lanternier [No 2] [2017] WASC 5 [152]; Salkilld v The State of Western Australia [64]. [32] ts 12, 27 March 2018.…
Salkilld v The State of Western Australia
[2017] WASCA 168 Para 4

…ROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims. [52] Dennis v Lanternier [No 2] [2017] WASC 5 [152]; see also Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27 [14].…

View all 12 citing cases →

Cases cited in this decision · 16 of 16 shown

Forkin v The State of Western Australia
[2013] WASCA 51

…Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28…
R v Stewart
[2010] SASCFC 72

…136 The general principle is that a court should not have regard to impact on family, except in extreme cases. In R v Stewart (1994) 72 A Crim R 17 Franklyn J said:…
Main v The State of Western Australia
[2010] WASCA 28

…SCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State…
Fernandes v The State of Western Australia
[2009] WASCA 227

…Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 P…
Roffey v The State of Western Australia
[2007] WASCA 246

…[2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473…
H v The State of Western Australia
[2006] WASCA 53

…ernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pic…
Samuels v The State of Western Australia
[2005] WASCA 193

…[2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473…
Chivers v The State of Western Australia
[2005] WASCA 97 Para 18

…at a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a re…
Pickett v The State of Western Australia
[2004] WASCA 291

…[2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193;…
Chan v The Queen
[2004] HCATrans 68

…Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone…
Shipley v The Queen
[2003] WASCA 247 Para 19

…e in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reducti…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed…
Paparone v The Queen
[2000] WASCA 127

…alia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246…
Little v The Queen
[2000] WASCA 87 Para 13

…, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will…
R v Dalgety
[2000] WASCA 10

…matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in R v Dalgety [2000] WASCA 10, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerati…
LJH v The State of Western Australia
[2016] WASCA 155

…A 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291…

Legislation cited in this decision · 3

Criminal Appeals Act 2004 (WA)
14(2) 2 mentions
Restraining Orders Act 1997 (WA)
61(1) 1 mention
Sentencing Act 1995 (WA)
11 1 mention