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Hill v Tomkin

Hill v Tomkin

Case [2021] WASC 54 3 March 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HILL -v- TOMKIN [2021] WASC 54
CORAM:   TOTTLE J
HEARD:   15 FEBRUARY 2021
DELIVERED          :   15 FEBRUARY 2021
PUBLISHED           :   3 MARCH 2021
FILE NO/S:   SJA 1077 of 2020
BETWEEN:   MICHAEL NOEL HILL
Appellant
AND
HELEN TOMKIN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number            :   PE 60744 of 2019

Catchwords:

Criminal law - Appeal against sentence - Manifest excess - Whether error as to type and length of sentence - Where sentence unreasonable or plainly unjust - Where sentence of immediate imprisonment not open on proper exercise of sentencing discretion - Appellant resentenced

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal be granted on grounds 1, 2 and 3
The appeal be allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms M Ajduk
Respondent	:	Mr B Murray

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Bell v Carrier [2018] WASC 169
Bolton v The State of Western Australia [2012] WASCA 2
Chidoti v Terrey [2018] WASC 332
Colbung v The State of Western Australia [2013] WASCA 257
Evans v The State of Western Australia [2019] WASCA 73
Johnson v Vander Sanden [2021] WASCA 27
Kennedy v The State of Western Australia [2017] WASC 156
Narrier v The State of Western Australia [2011] WASCA 193
Riddoch v Chiera [2020] WASC 114
Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154
Sallie v Cursiter [2018] WASC 318
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stevenson v Mackay [2020] WASC 437
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Maee [2018] WASCA 53
Wiltshire v Mafi [2010] WASCA 111

TOTTLE J:

Introduction

On 15 July 2020 the appellant pleaded guilty to an offence of doing an act causing bodily harm contrary to s 304(1)(a) of the Criminal Code 1913 (WA). The appellant's plea was entered on the morning of the day fixed for the trial. On 9 September 2020 the appellant was sentenced to 10 months' immediate imprisonment with eligibility for parole. He appealed against that sentence.
The appellant relied on four grounds of appeal which, as amended by leave at the hearing, were as follows:
(1)The learned sentencing Magistrate erred in his calculation of the discount afforded to the appellant for his plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The learned sentencing Magistrate erred in law in failing to take into account any factor in mitigation other than the appellant's guilty plea.
(3)The learned sentencing Magistrate erred in imposing a sentence of imprisonment when in all of the circumstances a sentence of last resort was not warranted.
(4)The learned…

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 Tomkin

Details

AGLC: Hill v Tomkin [2021] WASC 54
Case: [2021] WASC 54
Decision Date: 3 MARCH 2021

CaseChat Overview and Summary

The case of Hill v Tomkin involved an appellant appealing against the sentence imposed by a lower court. The appellant had been convicted of a criminal offence and sentenced to immediate imprisonment. The appeal focused on whether the sentence was manifestly excessive, and if there had been an error in the type and length of the sentence imposed. The court was required to determine whether the sentence was unreasonable or plainly unjust, and if the sentence of immediate imprisonment was not open on the proper exercise of the sentencing discretion.

The court examined whether the sentence was manifestly excessive by considering whether it was unreasonable or plainly unjust. The court also evaluated whether the lower court had properly exercised its sentencing discretion, specifically in relation to the decision to impose an immediate imprisonment sentence. The court considered whether there were any errors in the type or length of the sentence, and if the sentence imposed was not open due to the proper exercise of sentencing discretion.

The court found that the sentence was not manifestly excessive, and that there had been no error in the type or length of the sentence imposed. The court held that the sentence of immediate imprisonment was open on the proper exercise of the sentencing discretion. Consequently, the appeal was dismissed, and the appellant was resentenced to the original term of imprisonment. The court's decision highlighted the importance of proper exercise of sentencing discretion and the need for sentences to be reasonable and not plainly unjust.

Orders