FINNIGAN -v- NEIL [2007] WASC 199

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 199
Case No:	SJA:1008/2007	Heard:	9 AUGUST 2007
Coram:	BLAXELL J	Delivered:	31/08/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for an extension of time in which to seek leave to appeal refused
Category:	B
PDF Version

Parties:	NICOLE LISA FINNIGAN BLAKE NEIL
Catchwords:	Criminal law Appeal against sentence Multiple offences of minor fraud committed while appellant on bail in respect of other matters Sentencing adjourned to enable appellant to comply with Intensive Supervision Order previously imposed in respect of other matters Failure to comply Whether sentences totalling 18 months' immediate imprisonment excessive Whether Magistrate failed to consider suspended imprisonment
Legislation:	Sentencing Act 1995 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FINNIGAN -v- NEIL [2007] WASC 199 CORAM : BLAXELL J HEARD : 9 AUGUST 2007 DELIVERED : 31 AUGUST 2007 FILE NO/S : SJA 1008 of 2007 BETWEEN : NICOLE LISA FINNIGAN

Appellant

AND

BLAKE NEIL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE PM HEANEY

File No : PE 5733 of 2006, PE 25078 of 2006, PE 25079 of 2006, PE 25080 of 2006, PE 25081 of 2006, PE 25082 of 2006, PE 25083 of 2006, PE 25084 of 2006, PE 25085 of 2006, PE 25086 of 2006, PE 25087 of 2006, PE 25088 of 2006, PE 25089 of 2006, PE 25090 of 2006, PE 25091 of 2006, PE 25092 of 2006, PE 25093 of 2006, PE 25094 of 2006, PE 25095 of 2006, PE 25096 of 2006, PE 25097 of 2006, PE 25098 of 2006, PE 25099 of 2006, PE 25100 of 2006, PE 25101 of 2006, PE 25102 of 2006, PE 25103 of 2006, PE 25104 of 2006, PE 25105 of 2006, PE 25106 of 2006, PE 25107 of 2006, PE 38041 of 2006

(Page 2)

Catchwords:

Criminal law - Appeal against sentence - Multiple offences of minor fraud committed while appellant on bail in respect of other matters - Sentencing adjourned to enable appellant to comply with Intensive Supervision Order previously imposed in respect of other matters - Failure to comply - Whether sentences totalling 18 months' immediate imprisonment excessive - Whether Magistrate failed to consider suspended imprisonment

Legislation:

Sentencing Act 1995 (WA)

Result:

Application for an extension of time in which to seek leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Ms F M Allen

Solicitors:

Appellant : Ian Hope

Respondent : State Director of Public Prosecutions

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

Nil

(Page 3)

1 BLAXELL J: This is an application for an extension of time in which to seek leave to appeal from sentences totalling 18 months' immediate imprisonment imposed in the Perth Magistrates Court on 27 October 2006 in respect of 30 offences of fraud or attempted fraud, one offence of breach of bail, and one offence 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 Finnigan v Neil

Details

AGLC: Finnigan v Neil [2007] WASC 199
Case: [2007] WASC 199
Decision Date: 31 AUGUST 2007

CaseChat Overview and Summary

The appeal was brought by the appellant against his sentence of 18 months' imprisonment for multiple offences of minor fraud, which were committed while the appellant was on bail for other matters. The appellant had previously been subject to an Intensive Supervision Order (ISO) in relation to those other matters. The Magistrate had adjourned the sentencing of the current offences to enable the appellant to comply with the ISO. However, the appellant failed to comply with the ISO and was subsequently sentenced to 18 months' imprisonment. The appellant argued that the sentence was excessive and that the Magistrate failed to consider suspended imprisonment.

The court considered whether the sentence was excessive and whether the Magistrate failed to consider the possibility of suspended imprisonment. The court noted that the appellant had a history of offending and had failed to comply with the conditions of the ISO. The court also noted that the appellant had committed the current offences while on bail for other matters. The court held that the sentence was not excessive and that the Magistrate had considered the possibility of suspended imprisonment but had rejected it due to the appellant's history of offending and failure to comply with the conditions of the ISO.

The court further held that the Magistrate had exercised their discretion in imposing the sentence and that the sentence was not manifestly excessive or disproportionate to the offending. The court also held that the Magistrate had considered all relevant factors, including the appellant's history of offending and the need for deterrence and rehabilitation. The court rejected the appellant's argument that the Magistrate had failed to consider suspended imprisonment.

The application for an extension of time in which to seek leave to appeal was refused.

Orders

Orders of the court

Application for an extension of time in which to seek leave to appeal refused

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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