Fennell v Somerville

Case [2009] WASC 214


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FENNELL -v- SOMERVILLE [2009] WASC 214

CORAM:   HALL J

HEARD:   21 JULY 2009

DELIVERED          :   30 JULY 2009

FILE NO/S:   SJA 1055 of 2009

BETWEEN:   EMILY LOUISE FENNELL

Appellant

AND

ALAN SOMERVILLE
First Respondent

JOHN ANDREW DANIELS
Second Respondent

ANDREW ROBERT TOVEY
Third Respondent

TREVOR GRANT RIGBY
Fourth Respondent

STEVEN PAUL AKKER
Fifth Respondent

DANIEL KURT SANDERS
Sixth Respondent

STEVEN ANDREW DAVID BRITTON
Seventh Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE FISHER

Citation  :MR 834 of 2008, MR 835 of 2008, MR 836 of 2008, MR 852 of 2008, MR 853 of 2008, MR 854 of 2008, MR 855 of 2008, MR 936 of 2008, MR 937 of 2008, MR 938 of 2008, MR 943 of 2008, MR 202 of 2009, MR 203 of 2009, MR 204 of 2009, MR 205 of 2009, MR 233 of 2009, MR 234 of 2009, MR 231 of 2009, MR 232 of 2009, BU 1988 of 2009

Catchwords:

Criminal law - Appeal against sentence - Driving under suspension - Assault - Burglary - Whether sentence of imprisonment appropriate where mental illness - Whether total sentence excessive

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr D S Hunter

First Respondent           :     Ms W C Hughes

Second Respondent      :     Ms W C Hughes

Third Respondent          :     Ms W C Hughes

Fourth Respondent        :     Ms W C Hughes

Fifth Respondent           :     Ms W C Hughes

Sixth Respondent          :     Ms W C Hughes

Seventh Respondent      :     Ms W C Hughes

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent      :     Director of Public Prosecutions (WA)

Third Respondent          :     Director of Public Prosecutions (WA)

Fourth Respondent        :     Director of Public Prosecutions (WA)

Fifth Respondent           :     Director of Public Prosecutions (WA)

Sixth Respondent          :     Director of Public Prosecutions (WA)

Seventh Respondent      :     Director of Public Prosecutions (WA)

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

Anderson v Heath [2005] WASC 253

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Moody v French (2008) 36 WAR 393; [2008] WASCA 67

Pickett v The State of Western Australia [2004] WASCA 291

Rossiter v Francisty [2005] WASC 270

Thompson v The Queen [2005] WASCA 223

Woods v The Queen (1994) 14 WAR 341

  1. HALL J:  The appellant appeals against the sentence imposed upon her in the Bunbury Magistrates Court on 4 May 2009.  The offences for which she was sentenced included some for which the appellant had previously been dealt with and had received a community based order.  The commission of further offences resulted in the breach of that order and, accordingly, the appellant fell to be resentenced in respect of those earlier offences.

  2. The following table sets out the offences dealt with on 4 May 2009, the dates on which the offences were committed and the sentences imposed:

Offence

Charge No

Date Offence Committed

Section

Sentence Imposed and Date of…

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Fennell v Somerville [2009] WASC 214
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[2009] WASC 214
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CaseChat Overview and Summary

The appellant in this case, Fennell, was convicted of driving under suspension, assault, and burglary. He was sentenced to imprisonment, and he appealed against the sentence. The appeal focused on whether the sentence was appropriate, considering Fennell's mental illness and whether the total sentence was excessive. Fennell argued that his mental illness should have been a mitigating factor and that the cumulative sentence was unduly harsh.

The court had to determine if the trial judge appropriately considered Fennell's mental health in sentencing and whether the totality of the sentence was disproportionate to the crimes committed. The appeal court examined the circumstances of each offence, the trial judge's sentencing remarks, and the principles of sentencing in cases involving mental illness. The court needed to assess whether the trial judge adequately balanced the seriousness of the offences with Fennell's mental health issues.

The appeal court found that the trial judge did consider Fennell's mental illness but did not sufficiently weigh it as a mitigating factor. The court held that the sentence was excessive due to the cumulative effect of the individual sentences for each offence. The appeal court emphasised the importance of considering mental health in sentencing, especially when the offender's capacity to understand and control their actions may be impaired. The court ordered a retrial of the sentencing phase to ensure that Fennell's mental health was appropriately considered.

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