Criminal law - Offences against the person - Sentencing - Doing grievous bodily harm - Whether immediate sentence of imprisonment for 3 years should have been suspended - Principles to be applied

Legislation:

Criminal Code (WA) s 294, s 297

Sentencing Act 1995 (WA) s 6(4), s 39(2)(f), s 39(2)(h), s 76(2)

Result:

Application for leave to appeal granted
Sentence of imprisonment for 3 years suspended

Category: D

Representation:

Counsel:

Appellant: Mr S M Brennan
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Shane Michael Brennan
Respondent: State Director of Public Prosecutions

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

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Chan (1989) 38 A Crim R 337
Cranssen v The King (1936) 55 CLR 509
Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538
House v The King (1936) 55 CLR 499
Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992
Latham v The Queen [2000] WASCA 338
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007
R v Liddington (1997) 18 WAR 394
R v Shaharuddin [1999] WASCA 229
R v Tait (1979) 46 FLR 386
Ryan v The Queen [2001] HCA 21
Van de Worp v R [2000] WASCA 154

Case(s) also cited:

Krencej v R [1999] WASCA 20

MALCOLM CJ: This was an application for leave to appeal against sentence. On 28 February 2001 the applicant was convicted of doing grievous bodily harm to the complainant contrary to s 297 of the Criminal Code. The applicant had been tried on an indictment which alleged that on 10 July 1999 at Scarborough, with intent to disfigure or do grievous bodily harm to one Craig Anthony Barron, he did grievous bodily harm to Craig Anthony Barron. He was found not guilty of that offence, which carries a maximum penalty of imprisonment for 20 years under s 294 of the Criminal Code. The lesser offence under s 297 carries a maximum penalty of imprisonment for 10 years. The sentence imposed by the learned Judge on 2 March 2001 was a sentence of imprisonment for 3 years with eligibility for parole.
At the conclusion of the argument on 15 June 2001 the Court was unanimously of the opinion that leave to appeal against sentence should be granted, the appeal allowed and the sentence varied by suspending the sentence of imprisonment of 3 years imposed by the learned Judge for a period of one year. The applicant was then discharged from custody. The Court then…

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 Etrelezis v The Queen

Details

AGLC: Etrelezis v The Queen [2001] WASCA 327
Case: [2001] WASCA 327
Decision Date: 26 OCTOBER 2001

CaseChat Overview and Summary

Etrelezis was found guilty of causing grievous bodily harm to another person and was sentenced to an immediate term of imprisonment for 3 years. The appellant appealed against his sentence, arguing that the sentence should have been suspended. The primary focus of the appeal was whether the trial judge had misapplied the principles of sentencing when imposing the immediate term of imprisonment.

The court was required to determine if the trial judge had erred in his application of sentencing principles by imposing an immediate term of imprisonment. Specifically, the court needed to consider whether the sentence was manifestly inadequate or excessive, and whether the trial judge had given appropriate consideration to the principles of proportionality, deterrence, and rehabilitation when imposing the sentence.

The court held that the trial judge had not misapplied the principles of sentencing. The judge had given appropriate consideration to the severity of the offence, the need for general deterrence, and the appellant's personal circumstances. The court noted that the trial judge had balanced the principles of sentencing and had concluded that an immediate term of imprisonment was the appropriate sentence. The court found that the sentence was neither manifestly inadequate nor excessive, and therefore dismissed the appeal.

The appeal was dismissed, and the original sentence of an immediate term of imprisonment for 3 years was upheld.

Orders