Grimshaw v The Queen - [2001] WASCA 427

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GRIMSHAW -v- THE QUEEN [2001] WASCA 427

CORAM: WALLWORK J
PARKER J
OLSSON AUJ

HEARD: 20 NOVEMBER 2001

DELIVERED : 20 DECEMBER 2001

FILE NO/S: CCA 76 of 2001

BETWEEN: DANIEL JAMES GRIMSHAW
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Application for leave to appeal against sentence - Appellant convicted of one count of robbery with violence, whilst in company and one count of assault with intent to steal using actual violence, whilst in company - Common purpose involving group of men going to Burswood Park to accost, bash and rob persons thought to be gay - Serious assaults by some members of group on two men, occasioning them significant physical injury - Appellant encouraged and supported enterprise by his presence, but did not participate in attack - Very young man with good prior record and under influence of older, dominant offenders - Concurrent sentences of 3 years' imprisonment with parole - Whether sentences manifestly excessive and should have been suspended

Legislation:

Nil

Result:

Leave granted
Appeal allowed
Sentences confirmed, but suspended

Category: B

Representation:

Counsel:

Applicant: Mr S J Jones
Respondent: Mr S E Stone

Solicitors:

Applicant: Stephen Smith
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R v Liddington (1997) 18 WAR 394
Veneziani v The Queen [2001] WASCA 246

WALLWORK J: I agree with the reasons for judgment of Olsson AUJ.
PARKER J: I have had the advantage of reading in draft the reasons now to be published by Olsson AUJ.
Those reasons well reflect the considerations which persuaded me to concur the orders made in this matter and I would not wish to add any further observations.
OLSSON AUJ: At the conclusion of the hearing of the application for leave to appeal in this matter, as in the related case of Jarrah Miller, the Court also announced that it was unanimously of the opinion that leave should be granted and the appeal allowed for the purpose of suspending the terms of imprisonment imposed on the appellant for a period of 2 years. An order to that effect was made forthwith. The Court intimated that it would publish reasons for its decision at a later stage.
In my reasons for decision published in relation to Miller, I traversed the narrative facts and sentencing outcomes in relation to all participants in the relevant common purpose in some detail. There is no need to reiterate the same background in the present reasons.
Suffice to rehearse that the present applicant for leave to appeal, to whom I will refer as "the appellant" also abandoned his challenge to the convictions against him. He only prosecuted his application for leave to appeal against the sentences imposed…

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 Grimshaw v The Queen

Details

AGLC: Grimshaw v The Queen [2001] WASCA 427
Case: [2001] WASCA 427
Decision Date: 20 DECEMBER 2001

CaseChat Overview and Summary

Grimshaw was convicted of one count of robbery with violence while in company and one count of assault with intent to steal using actual violence, while in company. The appellant was part of a group of men who went to Burswood Park to assault, bash and rob individuals perceived to be gay. The group's actions resulted in significant physical injuries to two victims. Although the appellant did not directly participate in the attacks, his presence and support were integral to the crime's success. The appellant, a young individual with a previously good record, was under the influence of older, more dominant offenders. The appellant was sentenced to concurrent terms of three years' imprisonment with parole. The appellant sought leave to appeal against his sentence, arguing that it was manifestly excessive and should have been suspended.

The primary legal issue was whether the sentences imposed were manifestly excessive and should have been suspended. The court considered the principles of sentencing, including the culpability of the offender, the nature and circumstances of the offence, and the need for deterrence and denunciation. The court also examined the appellant's role in the crime and his level of involvement. The appellant's legal team argued that, while he was present and supportive of the crime, he did not directly participate in the violence. They submitted that his sentence should reflect his lesser role and his age at the time of the offence.

The court examined the evidence and the submissions made by both parties. It found that the appellant's role, while supportive, was not as active as some of the other offenders. The court acknowledged the appellant's good prior record and his vulnerability to the influence of older, more dominant offenders. However, the court also considered the seriousness of the crimes and the need for deterrence and denunciation. Ultimately, the court determined that the sentences were not manifestly excessive and did not warrant suspension. The appeal against sentence was dismissed, and the original sentences were upheld.

Orders