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Horrocks v Discombe

Horrocks v Discombe

Case [2019] WASC 425 21 November 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HORROCKS -v- DISCOMBE [2019] WASC 425
CORAM:   CORBOY J
HEARD:   23 SEPTEMBER 2019
DELIVERED          :   1 OCTOBER 2019
PUBLISHED           :   21 NOVEMBER 2019
FILE NO/S:   SJA 1103 of 2019
BETWEEN:   PAUL HORROCKS
Appellant
AND
SEAN DISCOMBE
First Respondent
DANIEL COOK
Second Respondent
DANIEL JAMES ERIK JAMIESON
Third Respondent

ON APPEAL FROM:
For File No:   SJA 1103 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE ATKINS
File Number             :   RO 7683 of 2017, RO 7746 of 2017, RO 2309 of 2019

Catchwords:

Criminal law – Single judge appeal – Whether sentencing magistrate imposed manifestly excessive sentence – Whether sentence infringed totality principle

Legislation:

Road Traffic (Authorisation to Drive) Act 2008 (WA)

Result:

Leave to extend time within which to appeal granted
Leave to appeal on ground 2 granted
Appeal on ground 2 allowed
Sentence varied

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
First Respondent	:	Ms K C Cook
Second Respondent	:	Ms K C Cook
Third Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid - Perth
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)

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

Abeyakoon v Brown [2011] WASCA 63, (2011) 211 A Crim R 338
Closter v Humphreys [2012] WASC 145
Dinsdale v The Queen [2000] HCA 54, 202 CLR 321
Gable v Nardini [2010] WASC 321
Giglia v The State of Western Australia [2010] WASCA 9
Lowndes v The Queen [1999] HCA 299, (1999) 195 CLR 665
McKenzie v The State of Western Australia [2015] WASCA 163
Miller v Byrne [2016] WASC 236
Neves v Rogers [2013] WASC 440
R v Holder [1983] 3 NSWLR 245
The State of Western Australia v Roffey [2007] WASCA 246
Wallam v Dent [2008] WASC 170
Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J:

(These reasons were delivered orally on 1 October 2019 and have been edited from the transcript.)

The appeal

The appellant appeals from a sentence of 16 months' imprisonment to be immediately served. The sentence was imposed in the Rockingham Magistrates Court on 10 June 2019.
The relevant circumstances are as follows:
(1)On 27 November 2017, the appellant pleaded guilty to two charges:
(a)on 9 October 2017 at Warnbro, he unlawfully assaulted Lisa Melling and thereby did her bodily harm (RO 7683/2017: the Assault Offence); and
(b)on 10 October 2017 at Warnbro, he failed to comply with the requirement of a bail undertaking entered into on 9 October 2017 (RO 7746/2017: the Breach of Bail Offence).
(2)On 18 December 2017, the appellant was sentenced to a community based order for 12 months in respect of those offences (the CBO).
(3)On 21 November 2018, the appellant was convicted of, and sentenced for, a breach of the CBO. He was fined for the breach and the term of the CBO was extended by…

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 Horrocks v Discombe

Details

AGLC: Horrocks v Discombe [2019] WASC 425
Case: [2019] WASC 425
Decision Date: 21 NOVEMBER 2019

CaseChat Overview and Summary

In the matter of Horrocks v Discombe, the appellant, Horrocks, was convicted of drug trafficking and sentenced by a magistrate to three years imprisonment. The respondent, Discombe, was the magistrate who presided over the sentencing. The appeal was brought before a single judge, who was tasked with determining whether the sentence imposed was manifestly excessive and whether it infringed the totality principle.

The primary legal issue the court had to address was whether the sentencing magistrate's decision to impose a three-year prison sentence was manifestly excessive. This involved assessing whether the sentence was so disproportionate to the offence that it would shock the conscience of the court. Additionally, the court examined whether the sentence infringed the totality principle, which requires that the total sentence for multiple offences should not be excessive when considered cumulatively.

The court concluded that the sentence was not manifestly excessive and did not infringe the totality principle. The judge emphasised that the sentencing magistrate had considered the relevant factors, including the nature and circumstances of the offence, Horrocks' criminal history, and the need for deterrence and rehabilitation. The court found that the sentence was proportionate to the gravity of the crime and did not exceed what would be considered appropriate for the offence. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court's final order was that the appeal against sentence be dismissed, and the original sentence imposed by the magistrate was confirmed as appropriate and not manifestly excessive.

Orders