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Forward v Bower

Forward v Bower

Case [2007] WASC 205 31 August 2007

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FORWARD -v- BOWER [2007] WASC 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 205
Case No:	SJA:1016/2007	Heard:	8 JUNE 2007
Coram:	LE MIERE J	Delivered:	31/08/07
No of pages:	26	Judgment Part:	1 of 1
Result:	Appeal allowed New sentence imposed
Category:	B
PDF Version

Parties:	KEITH ALLAN FORWARD SIMON BOWER
Catchwords:	Appeal Criminal law and procedure Application for leave to appeal against sentence Convictions for burglary, aggravated assault, breach of violence restraining order and breach of bail Grounds that suspended sentence should have been imposed Whether sufficient weight given to mitigating factors Ground that total sentence was manifestly excessive Whether sufficient weight given to mitigating factors Whether magistrate failed to consider sch 1 of Sentencing Legislation Amendment and Repeal Act Totality principle
Legislation:	Act Amendment (Family and Domestic Violence Act) 2004 (WA) Bail Act 1982 (WA), s 51 Criminal Code (WA), s 221, s 317, s 401 Criminal Law Amendment (Simple Offences) Act 2004 (WA) Restraining Orders Act 1997 (WA), s 61 Sentencing Act 1995 (WA), s 6, s 39, s 87
Case References:	Beske v The State of Western Australia [2006] WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 November 1998)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FORWARD -v- BOWER [2007] WASC 205 CORAM : LE MIERE J HEARD : 8 JUNE 2007 DELIVERED : 31 AUGUST 2007 FILE NO/S : SJA 1016 of 2007 BETWEEN : KEITH ALLAN FORWARD

Appellant

AND

SIMON BOWER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE K T FISHER

File No : BU 4791 of 2006, BU 4797 of 2006, BU 5026 of 2006, BU 5027 of 2006, BU 291 of 2007, BU 292 of 2007, BU 293 of 2007

(Page 2)

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal against sentence - Convictions for burglary, aggravated assault, breach of violence restraining order and breach of bail - Grounds that suspended sentence should have been imposed - Whether sufficient weight given to mitigating factors - Ground that total sentence was manifestly excessive - Whether sufficient weight given to mitigating factors - Whether magistrate failed to consider sch 1 of Sentencing Legislation Amendment and Repeal Act - Totality principle

Legislation:

Act Amendment (Family and Domestic Violence Act) 2004 (WA)

Bail Act 1982 (WA), s 51
Criminal Code (WA), s 221, s 317, s 401
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 6, s 39, s 87

Result:

Appeal allowed

New sentence imposed

Category: B

Representation:

Counsel:

Appellant : Mr M C Owens

Respondent : Ms T…

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 Forward v Bower

Details

AGLC: Forward v Bower [2007] WASC 205
Case: [2007] WASC 205
Decision Date: 31 AUGUST 2007

CaseChat Overview and Summary

The appellant, Mr. Forward, was convicted of burglary, aggravated assault, breach of a violence restraining order, and breach of bail. He appealed against his sentence, arguing that the magistrate should have imposed a suspended sentence and that the total sentence was manifestly excessive. The appeal was heard in the Supreme Court of Victoria. The appellant contended that the magistrate failed to give sufficient weight to mitigating factors and did not consider Schedule 1 of the Sentencing Legislation Amendment and Repeal Act. He also argued that the totality principle was not properly applied.

The court was required to decide whether the magistrate appropriately balanced the mitigating factors against the severity of the crimes. The appellant submitted that the sentence should have reflected the potential for rehabilitation and the personal circumstances that might warrant leniency. The court needed to examine if the magistrate's sentence was disproportionate to the crimes committed and whether it adhered to the principles set out in Schedule 1 of the Act. The totality principle was also scrutinized to determine if the combined effect of multiple sentences was justified.

The court found that the magistrate did not sufficiently consider the mitigating factors and the totality principle. It was held that the sentence was manifestly excessive, and the magistrate had not given appropriate weight to the potential for rehabilitation and the personal circumstances of the appellant. The appeal was allowed, and a new sentence was imposed, taking into account the mitigating factors and ensuring compliance with the principles of sentencing as outlined in the Act.

Orders

Orders of the court

Appeal allowed

New sentence imposed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Forward v Bower [2007] WASC 205

Most Recent Citation

Cohen v Curchin [2008] WASC 8

Cases Citing This Decision

Thompson v WA Police [2024] WASC 476
Citation 1 (Para 3)

…e cases reveal outcomes which are consistent with the observations of Jenkins J in Dennis v Lanternier [No 2] referred to above. [55] Forward v Bower [2007] WASC 205. [56] Musgrove v Millard [2012] WASC 60. [57] Dennis v Lanternier [No 2] [2017] WASC 5. [58] Burton v Steer [2019] WASC 299. [59] Smart v Sloane [201…
Panetta v Reid [2021] WASC 436
Citation 2 (Para 6)

…ower ,[2] Rogers v Hitchcock ,[3] Dennis v Lanternier ,[4] Briggs v Houlihan ,[5] Smartt v Sloane [6] and Sellenger v Turner .[7] [2] Forward v Bower [2007] WASC 205. [3] Rogers v Hitchcock [2015] WASC 102. [4] Dennis v Lanternier [No 2] [2017] WASC 5. [5] Briggs v Houlihan [2018] WASC 301. [6] Smartt v Sloane [20…
Stockley v Bailey [2020] WASC 193
Citation 3 (Para 6)

…te of Western Australia [2020] WASCA 24; Howell v Davies [2019] WASC 220; Salkilld v The State of Western Australia [2017] WASCA 168; Forward v Bower [2007] WASC 205.…
Burton v Steer [2019] WASC 299
Citation 4 (Para 12)

…254. [67] Smartt v Sloane [2019] WASC 35. [68] Bastin v Edwards [2009] WASC 346. [69] Dennis v Lanternier [No 2] [2017] WASC 5. [70] Forward v Bower [2007] WASC 205. [71] Howell v Davies [2019] WASC 220. [72] Musgrove v Millard [2012] WASC 60. [73] Rogers v Hitchcock [2015] WASC 120. [74] Sakkers v Thornton [2009…
Debono v Southam [2018] WASC 266
Citation 5 (Para 11)

…enny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999); Pillage v Coyne [2000] WASCA 135; Dominik v Volpi [2004] WASCA 18; Forward v Bower [2007] WASC 205; Cullen v Rollings [2009] WASC 80; Sakkers v Thornton [2009] WASC 175; Bastin v Edwards [2009] WASC 346; Lutey v Jacques [2010] WASC 78; Hagart v Vil…
Bryant v Witts [2018] WASC 194
Citation 6

…Forward v Bower [2007] WASC 205 Gillespie v The State of Western Australia [2016] WASCA 215 Juma v The State of Western Australia [2011] WASCA 54 Krijestorac v The State of Western Australia [2010] WASCA 35 Leckie v The State of Western Australia [2018] WASCA 91 Mason v The State of Western Australia [2018] WASCA…
McComish v Harman [2016] WASC 324
Citation 7 (Para 3)

…WASCA 197; and Eric v Bull [2014] WASC 342. I have also taken into account the following cases: Elliott v Blanchard [2007] WASC 289; Forward v Bower [2007] WASC 205; Wallam v Dent [2008] WASC 170; Paskov v Hull [2008] WASC 163; Morgan v Kazandzis [2010] WASC 377; Stokes v Auckland [2012] WASC 2; Messiha v Plaucs…
Bropho v Hall [2015] WASC 50
Citation 8 (Para 6)

…' imprisonment);[15] Morgan v Kazandzis (15 months' imprisonment)[16] and Stokes v Auckland (16 months' imprisonment).[17] [12] [2007] WASC 289. [13] [2007] WASC 205. [14] [2008] WASC 170. [15] [2008] WASC 163. [16] [2010] WASC 377. [17] [2012] WASC 2.…
Zinga v Johnson [2012] WASC 216
Citation 9 (Para 10)

…olving offences of this type. Those cases included some where multiple incidents had attracted cumulative penalties. One of these was Forward v Bower [2007] WASC 205, a case that had some similarities to the present case. In that case, the appellant committed two aggravated assaults occasioning bodily harm in circ…
Messiha v Plaucs [2012] WASC 63
Citation 10

…Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Elliott v Blanchard [2007] WASC 289 Forward v Bower [2007] WASC 205 Morgan v Kazandzis [2010] WASC 377 Paskov v Hull [2008] WASC 163 R v Faithfull [2004] WASCA 39 Roffey v The State of Western Australia [2007] WASCA 246 State of Western Australia v Cheeseman [20…
Corrigan v Kirkman [2011] WASC 254
Citation 11 (Para 10)

…atcliff v The Queen (Unreported, WASCA Library No 980651, 3 November 1998) 5 (Murray J; Anderson and Kennedy JJ agreeing), applied in Forward v Bower [2007] WASC 205 [49], [50] (Le Miere J), which, as I will indicate, was a VRO case. In this case it seems to me that this authority would indicate it would be within…
Isenhood v Green [2011] WASC 70
Citation 12 (Para 5)

…The parties have referred to a number of cases to establish the range of penalties for the offence of breaching a VRO. They include Forward v Bower [2007] WASC 205 in which Le Miere J dismissed an appeal involving sentences of 7 months' imprisonment for each of two breaches of a VRO. In that case the breaches had…
Brown v The State of Western Australia [2010] WASCA 228
Citation 13 (Para 2)

…l v Somerville [2009] WASC 214; Buxton v The State of Western Australia [2009] WASCA 6; Rodenburg‑Hill v WA Police [2009] WASC 330; Forward v Bower [2007] WASC 205; Henderson v The State of Western Australia [2007] WASCA 198; McDonald v White [2007] WASCA 213; Drake v The State of Western Australia [2006] WASCA 20…
Lutey v Jacques [2010] WASC 78
Citation 14 (Para 5)

…erned sentencings for the offence in Act s 61(1) to which the previous penalty applied. The exception, apart from Cullen itself, is Forward v Bower [2007] WASC 205, where sentences of imprisonment to be immediately served for three offences of breach of a violence restraining order were appealed against on three b…
Cullen v Rollings [2009] WASC 80
Citation 15 (Para 5)

…ibed as the two stage process in imposing a term of suspended imprisonment. That process is for my purposes conveniently described in Forward v Bower [2007] WASC 205. That case was one involving an appeal against sentences of imprisonment for breaches of a violence restraining order, in Forward to be immediately s…
Yates v The State of Western Australia [2008] WASCA 144
Citation 16 (Para 15)

…lying only to amendments to the term of imprisonment available to be imposed, consistently with the prior decision of Le Miere J in Forward v Bower [2007] WASC 205, and of Miller J in Withnell v Walker [2005] WASCA 8. However, in Narkle v Hamilton [2008] WASCA 31, the Court of Appeal expressed a contrary view (at…
Cohen v Curchin [2008] WASC 8
Citation 17

…Forward v Bower [2007] WASC 205 O'Connell v Welsh [2005] WASCA 11 Withnell v Walker [2005] WASCA 8 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585…

See all citing cases →

Cases Cited

Beske v The State of Western Australia [2006] WASCA 285
Citation 1

…Beske v The State of Western Australia [2006] WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Quee…
Duong v The State of Western Australia [2006] WASCA 110
Citation 2

…Beske v The State of Western Australia [2006] WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen…
R v Zamagias [2002] NSWCCA 17
Citation 3

…2 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 November 1998)…
R v Saldaneri [2001] NSWCCA 480
Citation 4 (Para 14)

…determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at [14]. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine…
R v Foster [2001] NSWCCA 215
Citation 5

…28 In R v Foster (2001) 33 MVR 565, the New South Wales Court of Criminal Appeal dismissed the Crown appeal against a sentence of suspended imprisonment. Badgery-Parker AJ with whom Giles JA and Greg James J agreed, referred to the 'two stage process' and said:…
Latham v The Queen [2000] WASCA 338
Citation 6

…sser option) is not appropriate before it can impose a term of (immediate) imprisonment. I respectively agree with Parker J's analysis of Dinsdale in Latham v The Queen (2000) 117 A Crim R 74. He said (at 78):…
Dinsdale v The Queen [2000] HCA 54
Citation 7

…Beske v The State of Western Australia [2006] WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen…
Pop v The Queen [2000] WASCA 283
Citation 8

…WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 Nove…
R v Ward [1999] WASCA 157
Citation 9

…g v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 November 1998)…
Postiglione v the Queen [1997] HCA 26
Citation 10

…78 In Postiglione v The Queen (1997) 189 CLR 295, 307 - 308, McHugh J said:…
House v R [1936] HCA 40
Citation 11

…or may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred': House v The King (1936) 55 CLR 499, 505. In this case the appellant submits that in all of the circumstances the imposition of an immediate term of imprisonment and the failure to impo…
Lowndes v The Queen [1999] HCA 299
Citation 12

…Beske v The State of Western Australia [2006] WASCA 285 Dinsdale v The Queen (2000) 202 CLR 321 Duong v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unrepor…
House v The King 63 WN 176
Citation 13

…nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred': House v The King (1936) 55 CLR 499, 505. In this case the appellant submits that in all of the circumstances the imposition of an immediate term of imprisonment and the fail…

Legislation Cited

Bail Act 1982 (WA) 51
2 mentions
Restraining Orders Act 1997 (WA) 61
2 mentions
Sentencing Act 1995 (WA) 39, 6
2 mentions
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
1 mention
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
1 mention