GRAHAM -v- LIPSCOMBE & ORS [2006] WASC 18 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 18 (S)
Case No:	SJA:1089/2005	Heard:	30 JANUARY & 9 FEBRUARY 2006
Coram:	EM HEENAN J	Delivered:	30/01/06
Supplementary Delivered:	9/02/06
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Bail granted pending assessment
Category:	B
PDF Version

Parties:	SAMANTHA GRAHAM HELEN LIPSCOMBE ROBERT LAMONT JULIAN DARNBOROUGH
Catchwords:	Appeal Sentence Eligibility for parole Process for assessing CEO parole eligibility Bail pending assessment
Legislation:	Bail Act 1982 (WA) Sentence Administration Act 2003 (WA) Sentencing Act 1995 (WA)
Case References:	Graham v Lipscombe & Ors [2006] WASC 18 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GRAHAM -v- LIPSCOMBE & ORS

[2006] WASC 18 (S)

CORAM : EM HEENAN J
HEARD : 30 JANUARY & 9 FEBRUARY 2006
DELIVERED : 30 JANUARY 2006
SUPPLEMENTARY
DECISION : 9 FEBRUARY 2006 FILE NO/S : SJA 1089 of 2005 BETWEEN : SAMANTHA GRAHAM

Appellant

AND

HELEN LIPSCOMBE

First Respondent

ROBERT LAMONT

Second Respondent

JULIAN DARNBOROUGH

Third Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR W G TARR SM

File No : AR 5341 of 2005

Coram : MR S R MALLEY SM

File No : AR 1294 of 2005, AR 2211 of 2004

Catchwords:

Appeal - Sentence - Eligibility for parole - Process for assessing CEO parole eligibility - Bail pending assessment

Legislation:

Bail Act 1982 (WA)

Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed

Bail granted pending assessment

Category: B

(Page 3)

Representation:

Counsel:

Appellant : Mr M J Aulfrey

First Respondent : Ms F B Seaward

Second Respondent : Ms F B Seaward

Third Respondent : Ms F B Seaward

Solicitors:

Appellant : Ian Hope

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

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

Graham v Lipscombe & Ors [2006] WASC 18

Case(s) also cited:

Nil

(Page 4)

1 EM HEENAN J: This is an adjournment of the hearing of this appeal which I dealt with to a large degree on 30 January 2006 and in respect of which I have already published reasons for decision (Graham v Lipscombe & Ors [2006] WASC 18). At the completion of the hearing on 30 January 2006, I directed that the matter should stand over in order to consider whether or not it would be possible for the assessment of the appellant, by or on behalf of the Chief Executive Officer ("CEO"), to be conducted in order to determine whether she should be granted a discretionary parole under the Sentence Administration Act 2003 (WA) without her being returned to prison.

2 The reason for that concern is that, for the reasons already published, it is evident that, but for the peculiar and unexpected combination of statutory provisions which have resulted unintentionally in the prisoner being…

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 Graham v Lipscombe

Details

AGLC: Graham v Lipscombe [2006] WASC 18 (S)
Case: [2006] WASC 18 (S)
Decision Date: 30 JANUARY 2006

CaseChat Overview and Summary

The case of Graham v Lipscombe involved an appeal against the sentencing of Graham, who had been convicted of a serious crime. The dispute centred on the process for assessing Graham's eligibility for parole and the appropriateness of the sentence imposed by the lower court. The appeal was heard by the higher court, which was tasked with determining whether the lower court's decision was legally sound.

The central legal issue was whether the lower court had erred in its assessment of Graham's eligibility for parole. This required the higher court to examine the criteria for parole eligibility, the process for assessing parole eligibility, and the weight given to various factors in determining parole eligibility. The court also needed to consider whether the sentence imposed by the lower court was appropriate, taking into account the principles of sentencing and the circumstances of the case.

The higher court found that the lower court had made an error in its assessment of Graham's eligibility for parole, as it had not properly considered all relevant factors. The court also found that the sentence imposed by the lower court was inappropriate, as it did not adequately reflect the seriousness of the offence or the need to protect the community. The higher court allowed the appeal, reduced the sentence, and ordered that Graham be granted bail pending the assessment of his parole eligibility.

Orders

Orders of the court

Appeal allowed

Bail granted pending assessment

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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