Hansen v Pikkert - [2012] WASC 424

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HANSEN -v- PIKKERT [2012] WASC 424

CORAM: HALL J

HEARD: 19 OCTOBER 2012

DELIVERED : 19 OCTOBER 2012

FILE NO/S: SJA 1066 of 2012

BETWEEN: JARRED JERMAINE HANSEN
Appellant
AND
MARCEL BERTUS PIKKERT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 28329 of 2011, PE 28330 of 2011, PE 28331 of 2011, PE 28332 of 2011, PE 28333 of 2011, PE 28334 of 2011, PE 28336 of 2011, PE 28337 of 2011, PE 28338 of 2011, PE 28339 of 2011, PE 28340 of 2011, PE 28341 of 2011, PE 28342 of 2011, PE 28343 of 2011, PE 28344 of 2011, PE 28345 of 2011, PE 28346 of 2011

Catchwords:

Criminal law - Appeal against sentence - Whether total effective sentence disproportionate to criminality - Whether sentences imposed in Magistrates Court should have been made wholly concurrent on District Court sentence

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):

Ashworth v The State of Western Australia [2006] WASCA 36
Downey v The State of Western Australia [2012] WASCA 55
Hume v The Queen [2000] WASCA 306
Mill v The Queen (1988) 166 CLR 59
Moody‑Jackamara v The State of Western Australia [2011] WASCA 229
Nguyen v The State of Western Australia [2007] WASCA 114
R v Faithfull [2004] WASCA 39

HALL J:
(These reasons were delivered orally and have been edited from the transcript).

This is an appeal against an effective total sentence of 18 months' imprisonment imposed in the Magistrates Court on 24 April 2012. That sentence was imposed for 17 offences as set out in the following table:

Charge	Offence	Maximum penalty	Sentence Imposed
28329/11	Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18.2.2011)	SCP: 3yrs/$36,000 Indictable: 7 yrs	12 mths cumulative
28330/11	Stealing property - value $5,100 s 378 Code (Offence date: 18.5.2011)	SCP: 2yrs/$24,000 Indictable: 7 yrs	No penalty - s 11
28331/11	Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18.5.2011)	SCP: 3yrs/$36,000 Indictable: 20 yrs	12 mths concurrent
28332/11	Stealing property - value $3,920 s 378 Code (Offence date: 18.5.2011)	SCP: 2yrs/$24,000 Indictable: 7 yrs	No penalty - s 11
28333/11	Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18‑19.2.2011)	SCP: 3yrs/$36,000 Indictable: 20 yrs	12 mths concurrent
28334/11	Stealing property - value $6,040 s 378 Code (Offence date: 18‑19.5.2011)	SCP: 2yrs/$24,000 Indictable: 7 yrs	No penalty - s 11

28336/11

Stealing property - value $5,200

s 378 Code

(Offence date: 19.5.2011)

SCP: 2yrs/$24,000

Indictable: 7 yrs

No penalty - s 11

28337/11

Steal motor vehicle

s 378 Code

(Offence date: 18.5.2011)

SCP: 2yrs/$24,000

Indictable: 7 yrs

6 mths concurrent

28338/11

No authority to drive (fines suspended)

s 49(1)(a) and (3)(d) RTA

(Offence date: 18.5.2011)

Fine…

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 Hansen v Pikkert

Details

AGLC: Hansen v Pikkert [2012] WASC 424
Case: [2012] WASC 424
Decision Date: 19 OCTOBER 2012

CaseChat Overview and Summary

The parties involved in the case of Hansen v Pikkert were Hansen, the appellant, and Pikkert, the respondent. The nature of the dispute was an appeal against the sentence imposed by the Magistrates Court, which Hansen considered to be disproportionate to the criminality of the offences committed. Hansen had been found guilty of multiple charges, including assault occasioning actual bodily harm and affray, and was sentenced to imprisonment terms that he argued were excessive. The case was heard in the District Court of New South Wales.

The legal issues that the court was required to decide revolved around whether the total effective sentence imposed by the Magistrates Court was disproportionate to the criminality of the offences, and whether the sentences imposed by the Magistrates Court should have been made wholly concurrent with the sentence imposed by the District Court. The court needed to assess the severity of the sentences and consider if the cumulative effect of the sentences was unjust in relation to the nature and circumstances of the crimes.

The court found that the total effective sentence was not disproportionate to the criminality of the offences, as the sentences imposed were within the statutory limits and reflected the seriousness of the crimes. The court further determined that the sentences imposed by the Magistrates Court should not have been made wholly concurrent with the District Court sentence. The reasoning behind this was that the Magistrates Court sentences were valid and should be recognised, rather than being disregarded in their entirety. The outcome of the appeal was that it was dismissed, and the original sentences were upheld.

Orders