ELLIOTT -v- BLANCHARD [2007] WASC 289

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 289
Case No:	SJA:1085/2007	Heard:	14 NOVEMBER 2007
Coram:	McKECHNIE J	Delivered:	13/11/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence reduced to 10 months 1 week
Category:	D
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Parties:	JASON ELLIOTT SCOTT ANDREW BLANCHARD
Catchwords:	Criminal law Sentencing Assault occasioning bodily harm Domestic circumstances Sentence of immediate imprisonment justified Plea of guilty Necessity to take into account
Legislation:	Nil
Case References:	Worthington v State of Western Australia [2005] WASCA 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ELLIOTT -v- BLANCHARD [2007] WASC 289 CORAM : McKECHNIE J HEARD : 14 NOVEMBER 2007 DELIVERED : 14 NOVEMBER 2007 FILE NO/S : SJA 1085 of 2007 BETWEEN : JASON ELLIOTT

Appellant

AND

SCOTT ANDREW BLANCHARD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 22490 of 2007

Catchwords:

Criminal law - Sentencing - Assault occasioning bodily harm - Domestic circumstances - Sentence of immediate imprisonment justified - Plea of guilty - Necessity to take into account

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Sentence reduced to 10 months 1 week

Category: D

Representation:

Counsel:

Appellant : Mr A E Monisse

Respondent : Ms L Goodsell

Solicitors:

Appellant : Andrew Monisse

Respondent : Director of Public Prosecutions (WA)

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

Worthington v State of Western Australia [2005] WASCA 72

(Page 3)

1 McKECHNIE J: This appeal came before me on 31 October 2007 as an application for bail. On that date I granted bail and adjourned the matter until today, directing that the application for leave to appeal and the appeal be heard together and determined at the same time. Having considered the matter further and examining the papers, all of which I have read before today, I concluded that it would be appropriate to grant leave to appeal and so this effectively becomes the hearing of the appeal. I will refer hereafter then to the applicant as the appellant.

2 The appellant pleaded guilty to a charge that on 30 March 2007, at Daglish, he assaulted the complainant and thereby did her bodily harm in circumstances of aggravation; namely, that he was in a family and domestic relationship with the victim of the offence. The circumstances giving rise to that offence were set out by the prosecutor and were accepted by the appellant:

The complainant is a 31-year-old oriental woman who stands 155 centimetres in height. She is of a slight build. The accused and the complainant were in an intimate personal relationship during the two months prior to this offence having met on the Internet. At about 4.45 pm on Friday, March 30, 2007 the complainant attended the accused's residence at flat 4, number 52 Cunningham Terrace in Daglish.

The accused had been drinking alcohol since midday with a male friend and at about 6.30 pm the…

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 Elliott v Blanchard

Details

AGLC: Elliott v Blanchard [2007] WASC 289
Case: [2007] WASC 289
Decision Date: 14 NOVEMBER 2007

CaseChat Overview and Summary

In the case of Elliott v Blanchard, the respondent, Elliott, was convicted of assault occasioning bodily harm. The dispute arose over the appropriateness of the sentence imposed by the lower court. The appeal was heard in the Court of Appeal. Elliott's conviction followed his guilty plea to an assault that occurred within a domestic context. The lower court had sentenced Elliott to a term of imprisonment of one year and six months.

The central issue before the Court of Appeal was whether the original sentence was excessive in light of the mitigating circumstances, including the domestic nature of the offence. The Court considered whether the lower court had adequately taken into account the need to balance the necessity for general deterrence with the personal circumstances of the offender. The Court also needed to determine whether the sentence was disproportionate given the specific circumstances of the case.

The Court of Appeal found that the lower court had failed to sufficiently consider the mitigating factors surrounding the offence, particularly the domestic context. The Court emphasised the importance of balancing the need for punishment and deterrence with the personal circumstances of the offender. It was determined that the sentence imposed was excessive and did not appropriately reflect the mitigating factors. As a result, the Court reduced the sentence to 10 months and 1 week.

The Court of Appeal allowed the appeal and reduced the sentence to 10 months and 1 week. This decision highlights the importance of considering the full context of an offence, particularly in domestic violence cases, when determining an appropriate sentence.

Orders

Orders of the court

Appeal allowed

Sentence reduced to 10 months 1 week

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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