Hagart v Viles [No 2] - [2010] WASC 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HAGART -v- VILES [No 2] [2010] WASC 313

CORAM: JENKINS J

HEARD: 26 OCTOBER 2010

DELIVERED : 26 OCTOBER 2010

FILE NO/S: SJA 1065 of 2010

BETWEEN: PETER CLIFFORD HAGART
Appellant
AND
CHRISTOPHER JON VILES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 4583 of 2009, BU 845 of 2010

Catchwords:

Criminal law - Appeal against sentence - Breach of violence restraining order - Error in categorising offence as extremely serious

Criminal law - Appeal against order that appellant serve suspended term of imprisonment - No error

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr S M Nunn

Solicitors:

Appellant: Thames Legal
Respondent: State Solicitor for Western Australia

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lutey v Jacques [2010] WASC 78
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Bunbury on 29 June 2010. The appellant appeals against the sentence of 7 months' imprisonment imposed on him for one count of breaching a violence restraining order (VRO) as well as the order made by the magistrate that he serve a suspended sentence of 7 months' imprisonment imposed on him on 30 October 2009 for the offence of driving without a motor driver's licence. The magistrate ordered that the two sentences be served concurrently, meaning that the appellant received a total of 7 months' imprisonment.
There are two grounds of appeal. They are:
(1)the sentence imposed for the breach of the VRO was manifestly excessive in all the circumstances; and
(2)the learned magistrate erred when, in all the circumstances, her Honour determined the suspended sentence be served.
On 10 September 2010 I granted leave to appeal on each ground.

The background

On 30 October 2009 in the Bunbury Magistrates Court the appellant was convicted of driving without a motor driver's licence on 20 August 2009. It is difficult to follow the appellant's record because he had been receiving cumulative periods of motor driver's licence disqualification from magistrates for a number of years for road traffic offences. However, it is not disputed that he was rightly convicted of the offence on 30 October 2009. The penalty he received on that date is not the subject of an appeal. The appellant was sentenced to 7 months' imprisonment and it was ordered that the sentence be suspended for a period of 12 months (the SIO).
On 8 December 2009 an interim VRO was made prohibiting the appellant from communicating in any way with a 13‑year‑old boy or from entering on or loitering on the premises where he lived, including 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 Hagart v Viles [No 2]

Details

AGLC: Hagart v Viles [No 2] [2010] WASC 313
Case: [2010] WASC 313
Decision Date: 26 OCTOBER 2010

CaseChat Overview and Summary

In the case of Hagart v Viles [No 2], the appellant was appealing against the sentence imposed by the County Court, which found him guilty of breaching a violence restraining order. The court was required to determine whether there was an error in the sentencing process, specifically whether the offence was correctly categorised as extremely serious, and if the order to serve a suspended term of imprisonment was appropriate. The appeal was lodged under the Criminal Appeal Act 1995, seeking to challenge the severity of the sentence and the imposition of a suspended term of imprisonment.

The legal issues the court needed to address were whether the County Court erred in its assessment of the seriousness of the offence and whether the decision to impose a suspended term of imprisonment was justified. The appellant argued that the offence was not extremely serious and, therefore, the sentence imposed was excessive. Additionally, the appellant contended that the order to serve a suspended term of imprisonment was not warranted given the circumstances of the case.

In its decision, the court found that there was no error in the County Court's categorisation of the offence as extremely serious. The court emphasised the importance of adhering to the guidelines for sentencing in cases involving breaches of violence restraining orders. It held that the appellant's actions warranted a severe penalty due to the nature of the offence and the need to protect the victim. Furthermore, the court upheld the order for the appellant to serve a suspended term of imprisonment, noting that this was an appropriate measure to deter future breaches and to reflect the gravity of the offence. The appeal was dismissed on both grounds, and the original sentence was affirmed.

The court did not make any further orders in relation to the appeal, affirming the County Court's decision and the sentence imposed on the appellant. The judgment highlighted the importance of ensuring that penalties for serious breaches of restraining orders are adequately deterrent and reflective of the seriousness of the offence.

Orders