FOWLER -v- THE QUEEN [2002] WASCA 296
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 296 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/2002 | 14 OCTOBER 2002 | |
| Coram: | STEYTLER J TEMPLEMAN J SHEPPARD AUJ | 1/11/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DESMOND FOWLER THE QUEEN |
Catchwords: | Criminal law and procedure Application for leave to appeal against sentence Sexual penetration without consent 5 years' imprisonment imposed Whether sentence manifestly excessive Whether failure by trial Judge to order presentence report resulted in miscarriage of justice Operation of s 87 of Sentencing Act 1995 Turns on own facts |
Legislation: | Sentencing Act 1995, s 87 |
Case References: | Gavin v The Queen (1991) 6 WAR 195 Drummond v The Queen, unreported; FCt SCt of WA; Library No 990075; 19 February 1999 Lowndes v The Queen (1999) 195 CLR 665 Mitchell v The Queen, unreported; FCt SCt of WA; Library No 960730; 18 December 1996 Pop v The Queen [2000] WASCA 283 R v Curley [2002] WASCA 257 R v Rozynski [2001] NSWCCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FOWLER -v- THE QUEEN [2002] WASCA 296 CORAM : STEYTLER J
- TEMPLEMAN J
SHEPPARD AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for leave to appeal against sentence - Sexual penetration without consent - 5 years' imprisonment imposed - Whether sentence manifestly excessive - Whether failure by trial Judge to order presentence report resulted in miscarriage of justice - Operation of s 87 of Sentencing Act 1995 - Turns on own facts
Legislation:
Sentencing Act 1995, s 87
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr K P Bates
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gavin v The Queen (1991) 6 WAR 195
Case(s) also cited:
Drummond v The Queen, unreported; FCt SCt of WA; Library No 990075; 19 February 1999
Lowndes v The Queen (1999) 195 CLR 665
Mitchell v The Queen, unreported; FCt SCt of WA; Library No 960730; 18 December 1996
Pop v The Queen [2000] WASCA 283
R v Curley [2002] WASCA 257
R v Rozynski [2001] NSWCCA 257
(Page 3)
1 STEYTLER J: This is an application for leave to appeal against a sentence of imprisonment imposed upon the applicant. On 19 December 2001 he was convicted, following a trial by jury in the District Court, of one count of sexual penetration without consent. He was sentenced to a period of 5 years' imprisonment with eligibility for parole.
2 The applicant, who represented himself on the hearing of the application, raised three grounds of appeal, as follows:
"1. The Learned…
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CaseChat Overview and Summary
The case of Fowler v The Queen involved the applicant, Fowler, seeking leave to appeal against a sentence imposed by the Supreme Court of Victoria. Fowler had been convicted of sexual penetration without consent and was sentenced to five years' imprisonment. The applicant contended that the sentence was manifestly excessive and that the trial judge's failure to order a pre-sentence report had resulted in a miscarriage of justice. The legal issues before the court were whether the sentence was manifestly excessive and whether the failure to order a pre-sentence report constituted a miscarriage of justice.
The court considered the operation of section 87 of the Sentencing Act 1995, which provides that a pre-sentence report may be ordered if it is in the interests of justice to do so. The court found that the trial judge had considered the matters relevant to sentencing and had made findings that supported the sentence imposed. The court also found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offence and the need to deter and protect the community. The court further found that the failure to order a pre-sentence report did not result in a miscarriage of justice, as the trial judge had made findings that were supported by the evidence and that there was no material error in the sentence imposed.
In light of the above findings, the court refused the application for leave to appeal. The court held that the sentence was not manifestly excessive and that the failure to order a pre-sentence report did not result in a miscarriage of justice. The court emphasised that the operation of section 87 of the Sentencing Act 1995 turns on the facts of each case, and that the trial judge had exercised their discretion in a manner that was consistent with the relevant statutory provisions.
The court considered the operation of section 87 of the Sentencing Act 1995, which provides that a pre-sentence report may be ordered if it is in the interests of justice to do so. The court found that the trial judge had considered the matters relevant to sentencing and had made findings that supported the sentence imposed. The court also found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offence and the need to deter and protect the community. The court further found that the failure to order a pre-sentence report did not result in a miscarriage of justice, as the trial judge had made findings that were supported by the evidence and that there was no material error in the sentence imposed.
In light of the above findings, the court refused the application for leave to appeal. The court held that the sentence was not manifestly excessive and that the failure to order a pre-sentence report did not result in a miscarriage of justice. The court emphasised that the operation of section 87 of the Sentencing Act 1995 turns on the facts of each case, and that the trial judge had exercised their discretion in a manner that was consistent with the relevant statutory provisions.
Orders
Orders of the court
Application for 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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