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Hill v Bodenham

Hill v Bodenham

Case [2000] WASCA 37 17 January 2000

Appeal

Sentencing

Offences against police officers

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HILL -v- BODENHAM [2000] WASCA 37

CORAM: TEMPLEMAN J

HEARD: 17 JANUARY 2000

DELIVERED : 17 JANUARY 2000

FILE NO/S: SJA 1171 of 1999

BETWEEN: PHILLIP RIDDEN HILL
Appellant
AND
TERRENCE WILLIAM BODENHAM
Respondent

Catchwords:

Criminal law - Offences against police officers - Appeal against sentence of Magistrate following plea of guilty to assaulting a police officer - Grounds upon which court of appeal may interfere with the sentence imposed at first instance - Whether Magistrate failed to take into account the fact that imprisonment is a sentence of last resort - Mitigating and aggravating circumstances surrounding the offence - Relevance in sentencing by a Magistrate of the maximum sentence that can be imposed summarily

Legislation:

Criminal Code, s 19A, s 318(1)(d)

Sentencing Act, s 64

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr M P Thackaberry
Respondent: Mr R E Cock QC

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: State Director of Public Prosecutions

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

Farmer v R, unreported; CCA SCt of WA; Library No 940075; 4 February 1994
Maxwell John Nevermann (1989) 43 A Crim R 347
R v Tait (1979) 46 FLR 386
Ugle v Lambrecht, unreported, SCt of WA; Library No 9069; 25 September 1991
Warrell v Kay (1995) 83 A Crim R 493

Case(s) also cited:

Australian Coal & Shale Employees Union v Commonwealth (1953) 94 CLR 621
Cunningham v R, unreported; CCA SCt of WA; Library No 4003; 4 December 1980
Delacey v R, unreported; CCA SCt of WA; Library No 7687; 31 May 1989
Heferen v R [1999] WASCA 81
House v The King (1936) 55 CLR 499
James v R (1985) 14 A Crim R 264
King v Power, unreported; CCA SCt of WA; Library No 930289; 27 May 1993
Miles V R (1997) 17 WAR 518
Narrier and Yates v Lewandowski, unreported; CCA SCt of WA; Library No 8429; 10 August 1990
Szthamary, unreported; CCA SCt of WA; Library No 7672; 24 May 1992
Veen v R (No 2) (1988) 164 CLR 465
Weng Keong Chan (1989) 38 A Crim R 337

TEMPLEMAN J: In the small community of Yalgoo there is one police officer. On 14 April 1999 that officer was Constable Bruce Needham who was the complainant in this matter. At 9.30 in the evening of that day Constable Needham was called to a disturbance of a kind which is known as a domestic, at the appellant's address.
When Constable Needham arrived he found that there were about between 15 and 20 persons in the front yard of the premises and there was some argument involving the appellant. Constable Needham told the appellant to calm down. A little later the appellant was placed under arrest by Constable Needham. As he was led to the police van he struggled and attempted to break free from the constable's grasp.
It is not entirely clear what happened then. But without doubt, the appellant inflicted a blow…

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 Hill v Bodenham

Details

AGLC: Hill v Bodenham [2000] WASCA 37
Case: [2000] WASCA 37
Decision Date: 17 JANUARY 2000

CaseChat Overview and Summary

In the matter of Hill v Bodenham, the respondent was convicted of assaulting a police officer while the appellant was acting as the police officer. The case was heard by the Supreme Court of South Australia on appeal from the Magistrates Court of South Australia, where the respondent was sentenced to imprisonment for six months. The appeal was brought on the grounds that the sentence was excessive, and the appellant argued that the Magistrate had failed to consider certain mitigating factors and had not taken into account the principle that imprisonment should be a sentence of last resort.

The legal issue before the court was whether the Magistrate had properly exercised their discretion in imposing the sentence of imprisonment, and whether the court of appeal should interfere with the sentence imposed at first instance. The court was required to consider whether the Magistrate had failed to take into account the principle that imprisonment should be a sentence of last resort, and whether the mitigating and aggravating circumstances surrounding the offence were properly considered in determining the appropriate sentence.

In considering these issues, the court found that the Magistrate had not failed to take into account the principle that imprisonment should be a sentence of last resort, and that the sentence imposed was within the range of appropriate penalties for the offence. The court found that the Magistrate had properly considered the mitigating and aggravating circumstances surrounding the offence, and that the sentence imposed was not manifestly inadequate or excessive. The court held that the appeal should be dismissed, and that the sentence imposed by the Magistrate was appropriate.

The final orders of the court were that the appeal be dismissed, that the sentence of imprisonment for six months imposed by the Magistrate be upheld, and that the respondent be required to pay the costs of the appeal.

Orders