Legal Research
Cases
Herbert v The Queen

Herbert v The Queen

Case [2003] WASCA 61 26 March 2003

Criminal Liability

Sentencing

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HERBERT -v- THE QUEEN [2003] WASCA 61

CORAM: MALCOLM CJ
ANDERSON J
MILLER J

HEARD: 5 FEBRUARY 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: CCA 112 of 2002

BETWEEN: TROY MATTHEW HERBERT
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - 33 offences including armed robbery, robbery, threats to injure, four counts of burglary of a habitation - Section 32 notice under Sentencing Act 1995 (WA) - Total term of sentences 58 years - Reduced by reason of the totality principle to 15 years with eligibility for parole - Whether excessive - Whether the severity of a sentence increases exponentially as it increases in length

Legislation:

Crimes Act 1914 (Cth), Pt 1B, s 16A

Criminal Code, s 661
Criminal Law (Sentencing) Act 1988 (SA), s 18A, s 10
Firearms Act 1973 (WA)
Sentencing Act 1995 (WA), s 32, s 33, s 143(1), s 143(3)

Weapons Act 1999 (WA)

Result:

Application for leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr R D Young
Respondent: Mr K P Bates

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

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

"D" v The Queen [2000] WASCA 137
"E" v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996
Abela v The Queen [2002] WASCA 279
Blight v The Queen [2001] WASCA 122
Boudville v The Queen [2001] WASCA 133
Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992
Bowman (1993) 69 A Crim R 530
Brett (1987) 140 LSJS 343
Clinch v The Queen, unreported; CCA SCt of WA; Library No 940321; 1 March 1994
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dixon v Scott [2002] WASCA 280
Evangelista v The Queen, unreported, CCA SCt of WA; Library No 920051; 30 January 1992
Fisher v The Queen [1999] WASCA 122
Gordon (1994) 71 A Crim R 459
Greenburg (1993) 68 A Crim R 392
Heferen v The Queen [1999] WASCA 81
Heryardi v The Queen (1998) 19 WAR 383
Hodder v The Queen (1995) 15 WAR 264
Holder and Johnston (1983) 3NSWLR 245
Jarvis v The Queen (1998) 20 WAR 201
Krakouer v The Queen (1996) 16 WAR 1
Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 12 July 1994
Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
Lowndes v The Queen (1999) 195 CLR 665
Magee v The Queen (1980) WAR 117
Mankovina v The Queen (No 2) (1997) 19 WAR 119
McL v The Queen (2000) 74 ALJR 1319
Mesiti v The Queen [1999] WASCA 76
Mickelberg (1984) 13 A Crim R 365
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Moro v The Queen [2001] WASCA 44
Moyse (1988) 38 A Crim R 169

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2003] WASCA 61
Case: [2003] WASCA 61
Decision Date: 26 MARCH 2003

CaseChat Overview and Summary

In Herbert v The Queen, the defendant was convicted on 33 charges, including armed robbery, robbery, threats to injure, and four counts of burglary of a habitation. The case was heard in the Supreme Court of Western Australia, where the defendant appealed the severity of the sentence. The defendant argued that the total term of 58 years, reduced by the totality principle to 15 years with eligibility for parole, was excessive and that the severity of a sentence increases exponentially as it lengthens.

The court was required to determine whether the sentence imposed was excessive and whether the severity of a sentence increases exponentially as it lengthens. The court examined the principles of sentencing, particularly the totality principle, and considered the impact of the cumulative nature of the defendant's offending. The court also examined whether the sentence was disproportionate to the seriousness of the offences committed.

The court found that while the sentence was severe, it was not excessive. The court concluded that the severity of a sentence does not increase exponentially as it lengthens, and that the sentence imposed was proportionate to the seriousness of the defendant's offending. The court also found that the sentence was appropriate to achieve the purposes of punishment, deterrence, and rehabilitation. The defendant's appeal against sentence was dismissed.

The Supreme Court of Western Australia upheld the sentence of 15 years with eligibility for parole after serving 10 years. The court found that the sentence was proportionate to the seriousness of the defendant's offending and that it achieved the purposes of punishment, deterrence, and rehabilitation. The defendant was also ordered to pay a fine of $5,000.

Orders