Esh v Cooper

[2009] WASC 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ESH -v- COOPER [2009] WASC 122

CORAM:   HASLUCK J

HEARD:   6 MAY 2009

DELIVERED          :   6 MAY 2009

FILE NO/S:   SJA 1025 of 2009

BETWEEN:   SIMON ESH

Appellant

AND

ANDREW DEREK COOPER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T J McINTYRE

File No  :MH 5239 of 2008

Catchwords:

Criminal law - Appeal against sentence - Whether sentence imposed in Magistrate's Court was manifestly excessive - Elements of sentencing including parity and discount for a plea of guilty - Appeal allowed and appellant resentenced to a lesser term of imprisonment

Legislation:

Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 14
Sentencing Act 1995 (WA), s 6

Result:

Appeal allowed and appellant resentenced

Category:    B

Representation:

Counsel:

Appellant:     Ms K J Farley

Respondent:     Mr E M Heenan

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

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

Chivers v The State of Western Australia [2005] WASCA 97

Deville v Western Australia [2004] WASCA 264

Dinsdale v The Queen [2000] HCA 54

Garrett v Nicholson (1999) 21 WAR 226

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lovatt v Western Australia [2004] WASCA 265

Lowe v The Queen (1984) 154 CLR 606

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Radebe v The Queen (2001) 162 FLR 313; [2001] WASCA 254

Veen v The Queen [No 2] (1988) 164 CLR 465; 33 A Crim R 230

Wong v The Queen (2001) 207 CLR 584

HASLUCK J: 

Introduction

1. The appellant, Simon Esh, has obtained leave to appeal against a sentence imposed in the Mandurah Magistrates Court on 3 February 2009. 

2. The question raised by the appeal is whether the magistrate, in sentencing the appellant to a term of imprisonment for 15 months' with eligibility for parole, imposed a sentence that was manifestly excessive given the circumstances of the offence and the antecedents of the appellant. 

Background

1. It appears from the relevant prosecution notice dated 12 August 2008 that the appellant was charged originally that on 3 April 2008 at Mandurah he unlawfully assaulted Michael Alexander Taylor and thereby did him bodily harm contrary to s 317(1) of the Criminal Code (WA); that is, the offence generally known as assault occasioning bodily harm. This charge arose out of an altercation that commenced on the evening of 3 April 2008 in the Slug and Hare Alehouse at Mandurah and led eventually to the death of the victim, Michael Alexander Taylor.

2. I will turn to the material facts in more detail later.  For the moment, suffice it to say that in the course of the encounter two other individuals were thought to be involved in the conduct complained of, namely, a woman called Ms Elise Spark and another man.

3. I understand that there was a period…