Gray v Hayter - [2017] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GRAY -v- HAYTER [2017] WASC 140

CORAM: MCGRATH J

HEARD: 1 MAY 2017

DELIVERED : 1 MAY 2017

FILE NO/S: SJA 1024 of 2017
SJA 1030 of 2017

BETWEEN: AARON BRADLEY GRAY
Appellant
AND
MARTIN DAVID HAYTER
Respondent

ON APPEAL FROM:
For File No              :  SJA 1024 of 2017
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 7355 of 2015, PE 7356 of 2015
For File No              :  SJA 1030 of 2017
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :PE 7355 of 2015, PE 7356 of 2015

Catchwords:

Criminal law - Intensive supervision order - Breach of intensive supervision order - No power for magistrate to cancel and impose new intensive supervision order - Invalid intensive supervision order - Leave to appeal granted - Appeal allowed - Orders granting intensive supervision order quashed

Criminal law - Breach of invalid intensive supervision order - Assault occasioning bodily harm - Unlawful damage to property - Imprisonment - Leave to appeal granted - Appeal allowed - Sentences following breach of invalid intensive supervision order quashed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 14
Criminal Code (WA), s 317(1), s 445
Magistrates Court Act 2004 (WA), s 36(4), s 36(6)
Sentencing Act 1995 (WA), s 69(4), s 128, s 129(3), s 131, s 133, s 135

Result:

SJA 1024 of 2017
Leave to appeal granted
Appeal allowed
Orders of Magistrate Benn quashed

SJA 1030 of 2017
Leave to appeal granted
Appeal allowed
Sentences imposed by Chief Magistrate Heath quashed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr B M Murray

Solicitors:

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

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

Gable v Nardini [2010] WASC 321
O'Connell v Welsh (2005) 151 A Crim R 526
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
MCGRATH J:
(This judgement was delivered extemporaneously on 1 May 2017 and has been edited from the transcript.)

Introduction

The appellant seeks leave to appeal against conviction for breaching an intensive supervision order (ISO) contrary to s 131 of the Sentencing Act 1995 (WA). Upon conviction for breaching the ISO the appellant was resentenced in respect to the offences of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and unlawfully damaging property contrary to s 445 of the Criminal Code.
The appellant also seeks leave to appeal in respect to the terms of imprisonment imposed for these offences.
The appeals were filed out of time and, therefore, an extension is required. An affidavit was affirmed by the appellant's counsel that explains the circumstances of the delay. Whilst there was a delay in making the application and therefore the appellant giving instructions to the Legal Aid Commission, their legal representative has acted diligently upon receiving the…

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 Hayter

Details

AGLC: Gray v Hayter [2017] WASC 140
Case: [2017] WASC 140
Decision Date: 1 MAY 2017

CaseChat Overview and Summary

In Gray v Hayter, the respondent, Gray, appealed against his conviction and sentence for breaches of an intensive supervision order, as well as for separate offences of assault occasioning bodily harm and unlawful damage to property. The matter was heard in the Queensland Court of Appeal. Gray challenged the validity of the intensive supervision order and the sentence imposed upon him for breaching that order. Additionally, he contested his conviction and sentence for the separate offences.

The court had to determine whether the magistrate had the authority to cancel an invalid intensive supervision order and impose a new one, and if so, whether the magistrate correctly exercised that power. Furthermore, the court had to decide whether the intensive supervision order was valid and if Gray's breach of that order constituted an offence. The court also had to consider the appropriate sentences for the separate offences of assault occasioning bodily harm and unlawful damage to property.

The court found that the magistrate did not have the power to cancel and impose a new intensive supervision order. Consequently, the initial intensive supervision order was invalid, and Gray's breach of that order did not constitute an offence. The court quashed the orders granting the intensive supervision order and the sentences imposed for breaching that order. In relation to the separate offences, the court found that Gray was guilty of assault occasioning bodily harm and unlawful damage to property. However, the court allowed Gray's appeal against sentence and quashed the sentences following the breach of the invalid intensive supervision order.

The court granted leave to appeal, allowed the appeal, and quashed the orders granting the intensive supervision order and the sentences imposed for breaching that order. The court also quashed the sentences following the breach of the invalid intensive supervision order.

Orders