Gibson v Kirkman
[2006] WASC 169
•14 AUGUST 2006
GIBSON -v- KIRKMAN [2006] WASC 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 169 | |
| 14/08/2006 | |||
| Case No: | SJA:1030/2005 | 28 JULY 2006 | |
| Coram: | McKECHNIE J | 28/07/06 | |
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Sentences to be served concurrently | ||
| D | |||
| PDF Version |
| Parties: | JAKE ALLAN GIBSON ANTHONY CHARLES KIRKMAN |
Catchwords: | Criminal law Proportionality of sentence to criminal conduct |
Legislation: | Nil |
Case References: | McCloy v Kirkman [2006] WASC 168 Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989 Herbert v The Queen (2003) 27 WAR 330 Lowdnes v The Queen (1999) 195 CLR 665 R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 400; Wong v The Queen (2001) 185 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ANTHONY CHARLES KIRKMAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J MCINTYRE
File No : AR 5608 of 2004, AR 5610 of 2004, AR 5612 of 2004
Catchwords:
Criminal law - Proportionality of sentence to criminal conduct
Legislation:
Nil
(Page 2)
Result:
Appeal allowed in part
Sentences to be served concurrently
Category: D
Representation:
Counsel:
Appellant : Mr P J Mugliston
Respondent : Ms M J Michalka
Solicitors:
Appellant : Dr Hal Colebach
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
McCloy v Kirkman [2006] WASC 168
Case(s) also cited:
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989
Herbert v The Queen (2003) 27 WAR 330
Lowdnes v The Queen (1999) 195 CLR 665
R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 400;
Wong v The Queen (2001) 185 ALR 233
(Page 3)
1 McKECHNIE J: The background facts are set out in McCloy v Kirkman [2006] WASC 168.
2 At the time of sentence the appellant was of relatively good character and aged almost 40 years. These were his first serious offences.
3 Having regard to the contents of the pre-sentence report and the fact that they were the first serious offences, I consider the sentence of 32 months was manifestly excessive and out of proportion to the criminal conduct. The proper sentence should have been one of 16 months for each charge to be served concurrently. Such a sentence would also have allowed for rehabilitation.
4 The same personal factors, and particularly the extent of drug rehabilitation that were present with McCloy, are not present with the appellant. Moreover, shortly after being sentenced on these matters, the appellant pleaded guilty on 18 February 2005 in the District Court to a series of burglary and stealing offences committed shortly before his trial on these matters.
5 The Magistrate was not in error in imposing a term of imprisonment to be served immediately, merely in relation to the length of that sentence. Therefore, I allowed the appeal, set aside the order for accumulation and ordered that all three sentences be served concurrently.
5
1