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Fennell v Somerville

Fennell v Somerville

Case [2009] WASC 214 30 July 2009

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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

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.
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…

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 Fennell v Somerville

Details

AGLC: Fennell v Somerville [2009] WASC 214
Case: [2009] WASC 214
Decision Date: 30 JULY 2009

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.

Orders