DURWARD -v- BELTON [2012] WASC 479

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 479
Case No:	SJA:1093/2012	Heard:	28 NOVEMBER 2012
Coram:	PRITCHARD J	Delivered:	28/11/12
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	MICHAEL GRAY DURWARD TRISTON BELTON
Catchwords:	Criminal law Appeal against sentence Sentence of imprisonment for 6 months and 1 day Offence contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) Whether manifestly excessive Relevant factors Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA) s 8(1), s 9(2) Criminal Investigation Act 2006 (WA) s 27, s 153(1) Criminal Law Amendment (Simple Offences) Act 2004 (WA) Liquor Control Act 1988 (WA) s 119(4) Police Act 1892 (WA) s 50 Sentencing Act 1995 (WA) s 6(5), s 39(3), s 76(2), s 86
Case References:	Griekspoor v Scott [2000] WASCA 419 McDougall v State of Western Australia [2009] WASCA 232 Morrow v UJC [2012] WASC 114 Samuel v State of Western Australia (2005) 30 WAR 473 Spratt v Canavan [2006] WASC 223 Strickland v Halliday (Unreported, WASC, Library No 920006, 15 January 1992) Turvey v Clifton [2012] WASC 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DURWARD -v- BELTON [2012] WASC 479 CORAM : PRITCHARD J HEARD : 28 NOVEMBER 2012 DELIVERED : 28 NOVEMBER 2012 FILE NO/S : SJA 1093 of 2012 BETWEEN : MICHAEL GRAY DURWARD

Appellant

AND

TRISTON BELTON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B LANE

File No : PE 33993 of 2012

Catchwords:

Criminal law - Appeal against sentence - Sentence of imprisonment for 6 months and 1 day - Offence contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) - Whether manifestly excessive - Relevant factors - Turns on own facts

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA) s 8(1), s 9(2)

Criminal Investigation Act 2006 (WA) s 27, s 153(1)
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Liquor Control Act 1988 (WA) s 119(4)
Police Act 1892 (WA) s 50
Sentencing Act 1995 (WA) s 6(5), s 39(3), s 76(2), s 86

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Ms K Farley

Respondent : Ms A B Preston-Samson

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

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

Griekspoor v Scott [2000] WASCA 419
McDougall v State of Western Australia [2009] WASCA 232
Morrow v UJC [2012] WASC 114
Samuel v State of Western Australia (2005) 30 WAR 473
Spratt v Canavan [2006] WASC 223
Strickland v Halliday (Unreported, WASC, Library No 920006, 15 January 1992)
Turvey v Clifton [2012] WASC 322

(Page 3)

PRITCHARD J

(These reasons were delivered orally and have been edited from the transcript.)

1 On 24 July 2012, Mr Durward pleaded guilty to a charge of failing to comply with an order given by an officer contrary to s 153(1) of the Criminal Investigation Act

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 Durward v Belton

Details

AGLC: DURWARD -v- BELTON [2012] WASC 479
Case: [2012] WASC 479
Decision Date: 28 NOVEMBER 2012

CaseChat Overview and Summary

The Court of Appeal heard an appeal against sentence by the appellant, Durward, who was convicted of an offence under section 153(1) of the Criminal Investigation Act 2006 (WA). The appellant was sentenced to six months and one day imprisonment, and the sentence was considered by the trial judge to be manifestly excessive. The appeal focused on the severity of the sentence imposed by the trial judge and whether it was appropriate in the circumstances of the case.

The legal issues before the court involved the assessment of whether the sentence imposed was manifestly excessive. This involved an examination of the relevant factors that should be considered in determining the appropriate sentence, such as the nature and circumstances of the offence, the culpability of the offender, and any mitigating or aggravating factors. The court was required to determine whether the trial judge had taken into account all relevant factors and whether the sentence was appropriate in light of those factors.

The Court of Appeal found that the sentence imposed by the trial judge was manifestly excessive. The court considered that the trial judge had not given sufficient weight to the mitigating factors in the case, such as the appellant's otherwise good character and his early guilty plea. The court also found that the sentence was disproportionate to the offence committed. The appeal was therefore allowed, and the sentence was set aside. The matter was remitted to the trial court for re-sentencing.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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