Gray v Franken - [2020] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GRAY -v- FRANKEN [2020] WASC 120
CORAM:   CORBOY J
HEARD:   20 & 25 MARCH 2020
DELIVERED          :   25 MARCH 2020
PUBLISHED           :   14 APRIL 2020
FILE NO/S:   SJA 1010 of 2020
BETWEEN:   PETER JAMES GRAY
Appellant

AND

MATTHEW FRANKEN
First Respondent

JOSHUA MITCHELL
Second Respondent

STACEY WHITEROAD
Third Respondent

GEORGINA KENELLY
Fourth Respondent

Catchwords:

Criminal law - Appeal against sentence - Restraining Orders Act 1997 (WA) - Breaches of a family violence restraining order - Turns on its own facts

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Leave to appeal out of time and leave to appeal on each ground of appeal granted

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms E R Zillessen
First Respondent	:	Mr G J Stockton
Second Respondent	:	Mr G J Stockton
Third Respondent	:	Mr G J Stockton
Fourth Respondent	:	Mr G J Stockton

Solicitors:

Appellant	:	Legal Aid - Perth
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office
Fourth Respondent	:	State Solicitor's Office

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

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
Bernard v Williams [2015] WASC 182
Closter v Humphreys [2012] WASC 145
Day v Millson [2015] WASC 183
Dennis v Lanternier [No 2] [2017] WASC 5
Giglia v The State of Western Australia [2010] WASCA 9
Howell v Davies [2019] WASC 220
Rogers v Hitchcock [2015] WASC 120
Wallam v Dent [2008] WASC 170
Wallan v Grosveld [2015] WASC 145
Weaver v Biggs [2019] WASC 333
Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J:

The appeal and its result

The appellant was convicted of six breaches of a family violence restraining order (FVRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (RO Act). In brief summary, the history of the appellant's offending and sentencing is that:
(a)The appellant first breached the FVRO on 22 October 2017. On 13 February 2018, he was sentenced for that offence to a term of imprisonment for 7 months, suspended for 12 months (JO 12823/2017).
(b)The appellant further breached the FVRO on 1 August 2018, 3 September 2018 and 5 February 2019. On 15 February 2019, he was sentenced to 10 months' imprisonment, conditionally suspended for 12 months (JO 10710/2018; JO 11664/2018; and JO 1388/2019) (the CSIO).
(c)The appellant again breached the FVRO on 20 and 28 February 2019 and 1 March 2019 (PE 16721/2019; PE 16722/2019; and PE 16723/2019). By committing those offences, the appellant also breached the CSIO. He was sentenced for the further offences and the breach of the CSIO on 2 October 2019. The sentencing magistrate held that it would not be unjust to require the appellant to serve the full term of imprisonment imposed by the CSIO. In addition, her Honour sentenced the appellant to terms of imprisonment of 5 months for each of the subsequent offences, with…

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 v Franken

Details

AGLC: Gray v Franken [2020] WASC 120
Case: [2020] WASC 120
Decision Date: 14 APRIL 2020

CaseChat Overview and Summary

The case of Gray v Franken involved an appeal against a sentence imposed for breaches of a family violence restraining order under the Restraining Orders Act 1997 in Western Australia. The appellant, Gray, was found to have contravened a restraining order intended to protect his former partner, Franken, from family violence. The trial judge had sentenced Gray to imprisonment, which the appellant contested on appeal, arguing the sentence was manifestly excessive. The appeal was heard in the Court of Appeal, which had to determine whether the original sentence was appropriate given the circumstances of the case.

The central legal issues before the court were whether the trial judge had appropriately considered all relevant factors in determining the sentence and whether the sentence imposed was manifestly excessive. The court had to assess whether the trial judge had correctly applied the principles of sentencing for breaches of restraining orders, taking into account the nature and seriousness of the offence, the need for deterrence, and the interests of justice. Additionally, the court needed to determine whether the sentence imposed was manifestly excessive by examining the proportionality of the sentence in relation to the offence.

The Court of Appeal found that the trial judge had appropriately exercised his discretion in imposing the sentence, considering the gravity of the breaches and the need for deterrence. The court held that the sentence was not manifestly excessive, as it was within the range of penalties that could be imposed for such breaches. The appeal was thus dismissed. The Court of Appeal emphasised the importance of the trial judge's consideration of the specific circumstances of the case, including the seriousness of the breaches and the need to protect the victim from further harm. The court concluded that the trial judge had appropriately balanced these factors in reaching his decision on the sentence.

In conclusion, the Court of Appeal upheld the original sentence, rejecting the appellant's argument that it was manifestly excessive. The court's decision highlighted the importance of a comprehensive assessment of the circumstances of each case when sentencing for breaches of restraining orders. The appeal was dismissed, and the original sentence was confirmed.

Orders