Djanghara v Law

Case [2020] WASC 258

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DJANGHARA -v- LAW [2020] WASC 258

CORAM:   ARCHER J

HEARD:   26 JUNE 2020

DELIVERED          :   26 JUNE 2020

FILE NO/S:   SJA 1007 of 2020

BETWEEN:   SABASTIAN ANTHONY DJANGHARA

Appellant

AND

DAVID LAW

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE C ROBERTS

File Number            :   KR 1015/2019


Catchwords:

Criminal law - Appeal against sentence - Having regard to uncharged offence - Manifestly excessive - Wrong sentence - Suspended imprisonment

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Appellant re-sentenced to a fine of $200, suspended for one month

Category:    B

Representation:

Counsel:

Appellant : C P Brennan
Respondent : G N Beggs

Solicitors:

Appellant : Aboriginal Legal Service (WA)
Respondent : The Director of Public Prosecutions (WA)

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

Birch v Binnekamp [2018] WASC 58

Collard v Peden [2017] WASC 32

Corpus v Roseveare [2015] WASC 165

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

Elwin v Robinson [2012] WASC 311

Fernandes v The State of Western Australia [2009] WASCA 227

Gaskell v The State of Western Australia [2018] WASCA 8

Gray v Hayter [2017] WASC 140

Heesom v O'Keefe [2017] WASC 362

Lewsam v The State of Western Australia [2016] WASCA 60

Moir v The State of Western Australia [2014] WASCA 25

Nayna v The State of Western Australia [2016] WASCA 169

Ninyette v Holmes [2015] WASC 287

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Skelly v The State of Western Australia [2020] WASCA 3

Strahan v Brennan [2014] WASC 190

Vickery v McAlinden [2017] WASC 224

Wilson v The State of Western Australia [2010] WASCA 82

ARCHER J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

  1. On 28 October 2019, the appellant pleaded guilty to three offences:  street drinking, disorderly behaviour in public and obstructing a public officer.  I will refer to the last offence as the 'obstruction offence'.

  2. On 10 January 2020, the learned sentencing magistrate fined the appellant in respect of the first two offences.  For the obstruction offence, his Honour imposed a term of suspended imprisonment of 6 months and 1 day, suspended for nine months.

  3. The appellant appeals against the sentence for the obstruction offence. 

  4. The application for leave to appeal was ordered to be heard at the same time as the appeal. 

Appeals from magistrates' decisions[1]

[1] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362, but is repeated here for convenience.

  1. Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:

    (a)that the court of summary jurisdiction -

    (i)made an error of law or fact, or of both law and fact;

    (ii)acted without…

Continue reading Djanghara v Law

Sign in free to access the full text

Details
AGLC
Djanghara v Law [2020] WASC 258
Case
[2020] WASC 258
Decision Date

CaseChat Overview and Summary

In the case of Djanghara v Law, the appellant appealed against the sentence imposed by the magistrate for the offence of obstructing a police officer. The appellant was sentenced to six months and one day in jail, suspended for a period of nine months. The appellant argued that the sentence was manifestly excessive and that the magistrate had effectively sentenced him for offences not charged. The appeal was heard by the Court of Appeal. The legal issues before the court were whether the sentence was manifestly excessive and whether the magistrate had sentenced the appellant for offences not charged. The court considered the arguments put forward by the appellant and found that the magistrate had taken into account threats made by the appellant to the police, which were not part of the offence for which he was charged. The court found that the magistrate had effectively sentenced the appellant for offences more serious than, and additional to, the offence of which he had been convicted. The court concluded that the sentence was manifestly excessive and that the appeal should be allowed on this ground.

The court considered the nature of the offence and the conduct of the appellant. The magistrate had described the conduct of the appellant as 'horrendous' and had placed great weight on the threats made by the appellant to the police. The court found that the magistrate had considered the uncharged offence of threatening to kill the police, which carries a maximum penalty of 7 years' imprisonment. The court found that the sentence imposed by the magistrate was not appropriate for the offence of obstructing a police officer, which carries a maximum penalty of 3 years' imprisonment. The court concluded that the sentence was manifestly excessive and that the appeal should be allowed on this ground. The court also noted that the sentence was wrong because it was based on offences not charged. The court found that the appellant had not been charged with threatening to kill the police, and that the sentence imposed by the magistrate was not appropriate for the offence of obstructing a police officer.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In relation to the obstruction offence, the magistrate said (emphasis added):[12]… Now, as far as obstruct polices go, this is an either way offence. It can go to the District Court, it can be dealt with here. The facts were just horrendous.You went up to the police taunting them by drinking in front of them. You then used abusive language. You then threatened them with you're going to kill them … You're lucky you're [sic: not] charged with threaten to kill. But that wasn't it. You continued on.You had fights with your friends. Your friends tried to do the right thing. They could see the way it was going. It was getting pretty ugly. They tried to settle you down. You wanted to fight them. Then you shaped up to the police. Then you lunged at the police. Then you resisted arrest. It took them a long while to subdue you, to handcuff you. They finally get you to the pod, you don't get in. They had to forcibly put you into the pod. That's not all. You keep on with your abuse. Get back to the station, threaten to kill the police again. Horrendous set of facts.[12] ts 6. Shortly afterwards, the magistrate said (emphasis added):[13]Accordingly, you will be sentenced on the obstruct to six months and one day in jail. I'm prepared to suspend that for a period of nine months.Hopefully, with that hanging over your head, hopefully, when you're out in the community drinking again, which I suspect is going to happen if you remain in Kununurra, when you're confronted by police again, you walk away and don't go using your mouth and actions like that. Otherwise you're going to go to jail for six months and one day for this one plus get it dealt with for extra time for any new offences. Do you understand that?It's not on abusing the police in such a discourteous fashion. Next time it will be outright jail if it happens again. [13] ts 7. I have kept in mind the work of magistrates in considering this ground of appeal. Despite making every allowance for that work, I am satisfied that the magistrate took into account the threats so as to, in effect, sentence the appellant for offences more serious than,[14] and additional to, the offence of which he had been convicted. The magistrate twice referred to the 'horrendous facts'. The magistrate set out in great detail the conduct of the appellant that took place well prior to when it could be said that the obstruction offence began. It is apparent that the magistrate placed great weight on what the appellant had said to the police, with particular emphasis on the threats to kill. [14] The maximum penalty for a threat to kill is 7 years' imprisonment. The summary conviction penalty is 3 years and a fine of $36,000. The maximum penalty for obstructing a public officer is 3 years' imprisonment. The summary conviction penalty is 18 months and a fine of $18,000. I would grant leave to appeal on this ground and allow the appeal on this ground. An assertion that a sentence is manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[15][15] Gaskell [127(1)].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.