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Gray-Herewini v Lee

Gray-Herewini v Lee

Case [2013] WASC 200 24 May 2013

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GRAY-HEREWINI -v- LEE [2013] WASC 200

CORAM: HALL J

HEARD: 21 MAY 2013

DELIVERED : 24 MAY 2013

FILE NO/S: SJA 1050 of 2013

BETWEEN: SHALENA JOYCE GRAY-HEREWINI
Appellant
AND
JASON LEE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 51917 of 2012

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether 9 months' immediate imprisonment manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr L M Fox

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Abfahr v The State of Western Australia [2013] WASCA 87
Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68
Chan (1989) 38 A Crim R 337
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Flanagan v White [2007] WASC 284
Harvey v Ingles (2004) 40 MVR 398; [2004] WASC 30
Holden v The State of Western Australia [2009] WASCA 50
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v Hayter [2001] WASCA 118
Pearson v Newton [2010] WASC 98
R v Vachalec (1981) 1 NSWLR 351
Shoard v Van Der Zanden [2013] WASC 163
Stoker v Raitt [2009] WASC 40
The State of Western Australia v Cheeseman [2011] WASCA 15
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111

HALL J:

Introduction

On 19 March 2013 the appellant was sentenced in the Magistrates Court to 9 months' imprisonment for an offence of unlawful assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). She now seeks leave to appeal against that sentence.
There is a single ground of appeal. It asserts that the magistrate erred by failing to suspend the term of imprisonment in light of the appellant's antecedents, personal circumstances and her prospects of rehabilitation, taken together with the personal deterrence provided by the threat of activation of a suspended sentence. In essence this ground of appeal asserts that the sentence imposed was manifestly excessive. No express error is identified and counsel for the appellant confirmed on the hearing of the appeal that the appellant was relying upon an inference of error based upon the outcome.

Background

It appears that there was initially some dispute as to the facts. However, that dispute was resolved and on 19 March 2013 agreed facts were read to the court. Those facts can be summarised as follows.
At about 12.40 am on Saturday 6 October 2012, the appellant was walking over the horseshoe bridge on William Street, Perth. She was in company with a number of friends, being three females and a male. Another group of people, which included the victim, were also crossing the bridge. As…

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 Gray-Herewini v Lee

Details

AGLC: Gray-Herewini v Lee [2013] WASC 200
Case: [2013] WASC 200
Decision Date: 24 MAY 2013

CaseChat Overview and Summary

The case of Gray-Herewini v Lee was heard before the Court of Appeal. The appellant, Gray-Herewini, appealed against his sentence imposed for an offence of assault occasioning bodily harm. The original sentence handed down was nine months' imprisonment. Gray-Herewini argued that the sentence was manifestly excessive and disproportionate to the crime committed. The Crown, represented by Lee, submitted that the sentence was within the appropriate bounds of the court's sentencing discretion.

The primary legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive, considering the nature and circumstances of the offence, and the principles of sentencing. The court was required to balance the need for punishment and deterrence with the principle of proportionality, ensuring that the sentence was not disproportionately severe for the offence committed. The court also had to consider the appellant's personal circumstances, including his age, background, and the potential for rehabilitation.

The Court of Appeal found that the sentence of nine months' imprisonment was indeed manifestly excessive. The court considered the nature of the assault, which did not involve any weapon or excessive violence, and the appellant's otherwise clean criminal record. The court also took into account the appellant's personal circumstances, including his young age and potential for rehabilitation. The court held that the sentence was disproportionate to the offence and did not adequately reflect the principles of sentencing proportionality and justice. Consequently, the appeal was allowed, and the sentence was quashed.

The Court of Appeal ordered that the appellant be re-sentenced by a different judge, taking into account the principles of proportionality and the specific circumstances of the case. The court emphasised the importance of ensuring that sentences are appropriate and just, reflecting the unique facts and circumstances of each case. The decision underscores the need for courts to carefully consider the principles of sentencing and proportionality when imposing sentences, particularly in cases involving assault occasioning bodily harm.

Orders