Flanagan v White

[2007] WASC 284

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FLANAGAN -v- WHITE [2007] WASC 284

CORAM:   JENKINS J

HEARD:   22 OCTOBER 2007

DELIVERED          :   23 NOVEMBER 2007

FILE NO/S:   SJA 1011 of 2007

BETWEEN:   TRISTAN WILLIAM ARTHAR FLANAGAN

Appellant

AND

TODD JOSEPH WHITE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S RICHARDSON

File No  :ME 698 of 2006

Catchwords:

Criminal law - Sentencing - Assault occasioning bodily harm - Whether magistrate sentenced on incorrect version of the facts - Whether defence counsel put all relevant mitigatory material before the magistrate - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 24
Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 20, s 21, s 83

Result:

Appeal allowed
Sentence of imprisonment for 12 months imposed by Magistrate set aside
Sentence of 10 months' imprisonment imposed, suspended for 12 months subject to the standard conditions and a programme requirement

Category:    B

Representation:

Counsel:

Appellant:     Mr R P Arndt

Respondent:     Ms F M Allen

Solicitors:

Appellant:     George Giudice Law Chambers

Respondent:     Director of Public Prosecutions (WA)

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

Mourish v The State of Western Australia [2006] WASCA 257

Nudd v The Queen (2006) 80 ALJR 614

JENKINS J: 

The decision under appeal

1. This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Meekatharra on 10 January 2007.  The appeal is against the sentence that the magistrate imposed upon the appellant for the offence of assault occasioning bodily harm.  The appellant was sentenced to 12 months' imprisonment.  He was made eligible for parole.

Grounds of appeal

1. The appellant has been given leave to appeal on four grounds.  They are:

   1.The magistrate erred in deciding that the only appropriate sentencing option was a term of immediate imprisonment;

   2.The magistrate erred in failing to give adequate consideration to the question of whether any term of imprisonment imposed ought to have been suspended;

   3.The magistrate erred in failing to give any or adequate weight to the opinion expressed in the pre‑sentence report that the appellant was 'deemed suitable for a community based disposition'; and

   4.The sentencing process miscarried as a result of the wrongful inclusion in the pre‑sentence report of irrelevant and prejudicial material outside the scope of a pre‑sentence report provided pursuant to the Sentencing Act 1995 (WA) s 21 namely the description of the injuries by the victim and the author of the pre‑sentence report's opinion as to the status of the victim.

2. In respect to grounds 1 and 2, the appellant relies on two particulars.  They are:

   1.The error of fact in the pre‑sentence report which stated that the victim was an 'innocent bystander'; and

   2.The failure by the appellant's counsel, to adequately put to the court mitigatory factors, namely that the appellant only intended to break up the fight between the complainant and the third party, the appellant did not intend to cause any injury to the complainant, the appellant…