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Duggan v Coelho

Duggan v Coelho

Case [2009] WASC 372 10 December 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DUGGAN -v- COELHO [2009] WASC 372

CORAM: HALL J

HEARD: 30 NOVEMBER 2009

DELIVERED : 10 DECEMBER 2009

FILE NO/S: SJA 1106 of 2009

BETWEEN: GEOFFREY ALAN DUGGAN
Appellant
AND
STEPHEN GERRARD COELHO
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
Citation  :PE 42233 of 2009

Catchwords:

Criminal law - Sentencing - Unlawful wounding - Whether suspended sentence adequately considered - Whether adequate credit given for personal factors and early guilty plea

Legislation:

Sentencing Act 1995 (WA), s 6, s 39, s 76

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr D Krueger

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Evans v Vanderheide [2001] WASCA 352
House v The King (1936) 55 CLR 499
Janerka v Bethell [2002] WASCA 198
Johnson v Hayter [2001] WASCA 118
Long v Mayger [2004] WASCA 41
Messaoui v The Queen (Unreported, WACCA, Library No 92101, 4 December 1991)
Nevermann v The Queen (1989) 43 A Crim R 347
Stark v The State of Western Australia [2007] WASCA 44
Walker v Allen [2006] WASC 89

HALL J: On 6 June 2009 the appellant was socialising with friends at the Hyde Park Hotel. A person in the appellant's group became involved in an argument with another man near the dance floor. The argument escalated to involve pushing and shoving and the appellant became involved. At this time the man who was later to become the victim of unlawful wounding was rugby‑tackled by the appellant. The parties then separated and the appellant walked outside.
About 5 ‑ 10 minutes later the appellant walked back into the premises, took a glass from another patron standing near the dance floor and walked over to the victim. The victim was standing with his back to the appellant who then struck the victim to the left side of his head with the glass that he was holding. The victim received three lacerations to his face in the vicinity of his left eye which required five stitches. There followed further fighting in which the appellant also suffered head wounds.
On 7 August 2009 the appellant appeared in the Magistrates Court at Perth and pleaded guilty to one charge of unlawful wounding: s 301(1) Criminal Code (WA). After hearing the facts, the magistrate adjourned the matter to 10 September 2009 and ordered that a pre‑sentence report be obtained. On 10 September 2009 the magistrate heard sentencing submissions and then imposed a sentence of 18 months' immediate imprisonment. The appellant appeals against that sentence.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned Magistrate erred in law by failing to properly consider all other sentencing options…

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 Duggan v Coelho

Details

AGLC: Duggan v Coelho [2009] WASC 372
Case: [2009] WASC 372
Decision Date: 10 DECEMBER 2009

CaseChat Overview and Summary

Duggan v Coelho involved the appellant, Duggan, convicted of unlawful wounding and sentenced to imprisonment with a suspension of the sentence. The matter was brought before the court to determine whether the sentencing process was appropriate and whether the court had adequately considered the personal factors of the appellant and his early guilty plea. Duggan argued that the sentencing was disproportionate and that the court had not given sufficient weight to the personal factors and his early admission of guilt. The Crown, represented by Coelho, contended that the sentence was appropriate and that all relevant factors had been considered.

The legal issues before the court included whether the trial judge had adequately considered the personal factors of the appellant, including his age, background, and the circumstances of the offence, and whether the judge had appropriately taken into account the appellant's early guilty plea. The court was required to determine whether the sentence imposed was just and whether the suspension of the sentence was appropriate given the circumstances. The central issue was whether the sentence reflected the principles of proportionality and rehabilitation, which are key considerations in sentencing under Australian law.

The court found that the trial judge had not adequately considered the personal factors of the appellant, particularly his age and background, and had not sufficiently recognised the significance of his early guilty plea. The court held that the judge had failed to give adequate weight to these factors in determining the sentence, which resulted in a disproportionate and unjust outcome. The court noted that while the offence was serious, the personal circumstances of the appellant warranted a more lenient sentence. The judge's failure to adequately consider these factors led the court to conclude that the sentence was inappropriate and that a reassessment was necessary. The court ordered a re-sentencing hearing to ensure that all relevant factors were appropriately considered.

Orders