Gibson v Kirkman

[2006] WASC 169

GIBSON -v- KIRKMAN [2006] WASC 169

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 169
Published:	14/08/2006
Case No:	SJA:1030/2005	Heard:	28 JULY 2006
Coram:	McKECHNIE J	Delivered:	28/07/06
No of pages:	3	Judgment Part:	1 of 1
Result:	Appeal allowed in part Sentences to be served concurrently
Category:	D
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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

CITATION : GIBSON -v- KIRKMAN [2006] WASC 169 CORAM : McKECHNIE J HEARD : 28 JULY 2006 DELIVERED : 28 JULY 2006 PUBLISHED : 14 AUGUST 2006 FILE NO/S : SJA 1030 of 2005 BETWEEN : JAKE ALLAN GIBSON

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.