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Hayter v Thomson

Hayter v Thomson

Case [2020] WASC 194 4 June 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HAYTER -v- THOMSON [2020] WASC 194
CORAM:   MCGRATH J
HEARD:   7 APRIL 2020 & 28 MAY 2020
DELIVERED          :   4 JUNE 2020
FILE NO/S:   SJA 1020 of 2020
BETWEEN:   BLADE ANTONY GRAHAM HAYTER
Appellant
AND
HAMISH THOMSON
First Respondent
DAMIAN WEBB
Second Respondent

Catchwords:

Criminal law – Sentencing – Appeal against immediate term of imprisonment – Possession of drug with intent to sell or supply to another – Breach of totality principle – Express error of law – Magistrate failed to impose sentence on each offence – Appeal allowed – Offender re-sentenced according to law

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9(1), s 9(2), s 14, s 23, s 24
Criminal Procedure Act 2004 (WA), s 3, s 23(2), s 68, s 148, s 171(2)
Magistrates Court Act 2004 (WA), s 36(1)(a), s 36(6)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(aa), s 34(2)(b)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 14(1), s 36, s 39, s54, s 76(1), s 88

Result:

Leave to appeal granted on ground two
Leave to appeal not granted on ground one
Appeal allowed
Offender re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms K E Heath
First Respondent	:	Ms G N Beggs
Second Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Attenborough v The State of Western Australia [2005] WASCA 132
Bailey v The State of Western Australia [2016] WASCA 10
Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donaldson v The State of Western Australia [2018] WASCA 143
Fenton v The State of Western Australia [2015] WASCA 255
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Juma v The State of Western Australia [2011] WASCA 54
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Maric v The State of Western Australia [2015] WASCA 190
Pearce v The Queen (1998) 194 CLR 610
Pepper v The State of Western Australia [2005] WASCA 177
Petrusic v The State of Western Australia [2020] WASCA 62
R v Weston [2000] WASCA 389
Roffey v The State of Western Australia [2007] WASCA 246
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thomspon [2014] WASCA 108
Truscott…

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 Hayter v Thomson

Details

AGLC: Hayter v Thomson [2020] WASC 194
Case: [2020] WASC 194
Decision Date: 4 JUNE 2020

CaseChat Overview and Summary

The case of Hayter v Thomson involves an appeal by the defendant against his sentence for possession of a drug with intent to sell or supply to another. The case was heard in the Supreme Court of Victoria. The defendant argued that the sentence imposed by the magistrate breached the totality principle, as it did not take into account the cumulative effect of the sentences for multiple offences. The defendant further contended that the magistrate failed to impose a sentence on each offence separately, which amounted to an express error of law.

The legal issues before the court were whether the sentence imposed by the magistrate breached the totality principle, and whether the magistrate had failed to impose a sentence on each offence separately. The court had to determine if the sentence was lawful and whether the defendant's rights were protected under the law. The court also had to consider whether the sentence imposed was excessive or disproportionate to the offence committed.

In delivering the judgment, the court held that the sentence imposed by the magistrate breached the totality principle, as it did not take into account the cumulative effect of the sentences for multiple offences. The court found that the magistrate had failed to impose a sentence on each offence separately, which amounted to an express error of law. The court held that the sentence imposed was excessive and disproportionate to the offence committed. The appeal was allowed, and the defendant was re-sentenced according to law.

The final orders of the court were that the appeal be allowed, and the defendant be re-sentenced according to law. The court found that the sentence imposed by the magistrate was excessive and disproportionate to the offence committed. The court also found that the magistrate had failed to impose a sentence on each offence separately, which amounted to an express error of law. The defendant was re-sentenced, and the sentence imposed was lawful and did not breach the totality principle.

Orders