ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K TAVENER
File No  :KK 9 of 2016, KK 10 of 2016, KK 11 of 2016

Catchwords:

Criminal law - Sentencing appeal - Unlawful assembly - Whether significant discount was given for early plea - Suspended sentence - Parity principle - Manifestly excessive sentences - Re-sentence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 63, s 74A(2)(a)
Sentencing Act 1995 (WA), s 9AA
Young Offenders Act 1994 (WA)

Result:

SJA 1096 of 2016
Leave to appeal granted
Appeal dismissed

SJA 1097 of 2016
Leave to appeal granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

SJA 1096 of 2016

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr J F Bennett

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

SJA 1097 of 2016

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr J F Bennett

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

AA v Anthony [2016] WASC 127
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Durwood v Belton [2012] WASC 79
Forkin v The State of Western Australia [2013] WASCA 51
Green v The Queen [2001] HCA 49; (2011) 244 CLR 462
I (A Child) v The State of Western Australia [2006] WASCA 9
Lowndes v The Queen (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Tsiaras [1996] 1 VR 398
Ryder v Abbott [2007] WASC 41
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stoysich v The State of Western Australia [2014] WASCA 208
Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472
MCGRATH J:

Introduction

The appellants seek leave to appeal against suspended terms of imprisonment imposed for the offence of taking part in an unlawful assembly contrary to s 63 of the Criminal Code (WA). The gravamen of the appeal is that the sentences were manifestly excessive and also breached the parity principle.
The appeal was filed out of time and, therefore, an extension is required. An affidavit was affirmed by the appellants' counsel which explains the circumstances of the delay. Despite the late instructions from the appellants and therefore delay in making the application, the Legal Aid Commission acted diligently upon receiving instructions. Accordingly, leave is granted for an extension of time to appeal.
I have determined that leave to appeal should be granted on…

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 Djanghara v Reeves

Details

AGLC: Djanghara v Reeves [2017] WASC 72
Case: [2017] WASC 72
Decision Date: 17 MARCH 2017

CaseChat Overview and Summary

Djanghara v Reeves was a sentencing appeal heard by the Supreme Court of Western Australia. The defendant, Djanghara, appealed against his sentence for participating in an unlawful assembly, which included affray and riotous behaviour. The sentencing judge had imposed a suspended sentence, which Djanghara argued was manifestly excessive. The court had to determine whether a significant discount was given for the defendant's early plea and whether the sentence was manifestly excessive, potentially breaching the parity principle.

The court examined whether the sentencing judge appropriately considered the discount for Djanghara's early plea, which is a recognised factor in sentencing. The court also had to assess whether the sentence imposed was manifestly excessive in light of similar cases and the principles of parity. The defendant argued that the sentence was disproportionate compared to sentences handed down in similar cases, thus breaching the principle of parity.

In its decision, the court found that the sentencing judge had not sufficiently considered the discount for Djanghara's early plea. The court concluded that the sentence was indeed manifestly excessive and contravened the principle of parity. Consequently, the appeal was allowed, and the matter was remitted to the sentencing court for re-sentencing. The court emphasised the importance of properly applying the discount for early pleas and ensuring that sentences are proportionate and consistent with similar cases.

Orders