Howell v Davies - [2019] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HOWELL -v- DAVIES [2019] WASC 220
CORAM:   HALL J
HEARD:   12 JUNE 2019
DELIVERED          :   12 JUNE 2019
PUBLISHED           :   27 JUNE 2019
FILE NO/S:   SJA 1064 of 2019
BETWEEN:   DAVID PETER HOWELL
Appellant
AND
KATE DAVIES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D POTTER
File Number             :   FR 2906/2019

Catchwords:

Criminal law - Breach of restraining order - Appeal against sentence of 7 months' imprisonment - Appellant convicted of at least two similar offences in previous two years - Application of s 61A - Whether sentence of imprisonment unjust - Whether magistrate erred in applying the unjust test when deciding whether immediate or suspended imprisonment was appropriate - Whether error material - No substantial miscarriage of justice where sentence was clearly appropriate in any event

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Restraining Orders Act 1997 (WA), s 61(1), s 61A(5), s 61A(6)

Result:

Extension of time granted
Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms P A Aloi

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

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

Day v Millson [2015] WASC 183
Rogers v Hitchcock [2015] WASC 120
Strahan v Brennan [2014] WASC 190

HALL J:

(This judgment was delivered on 12 June 2019 and has been edited from the transcript.)

On 26 March 2019, the appellant pleaded guilty to a charge of breaching a family violence restraining order and was sentenced to 7 months' imprisonment. He seeks leave to appeal against that sentence.
The appeal notice was filed on 7 May 2019. That was 12 days after the last date for filing such an appeal and, accordingly, an extension of time is required. An affidavit explaining the delay has been filed. The delay is relatively small and has occasioned no prejudice to the parties. An extension of time is appropriate.
The appellant also applied for an urgent appeal order, having regard to the shortness of the sentence. An urgent appeal order was granted by Strk AJ on 13 May 2019.

The facts

The facts of the offence are as follows.
On 17 October 2018, the appellant was served with an interim family violence restraining order. One of the conditions of that order was that the appellant not communicate or attempt to communicate with the protected person and not approach within 50 m of her.
On Monday, 11 March 2019, the appellant was required to attend at the Fremantle Magistrates Court for a hearing in relation to the restraining order. He did not appear when the matter was called on and, in his absence, the order was extended for 10 years.
Sometime between 10.30 am and 11.00 am, the protected person left the Fremantle Magistrates Court to have a cigarette. She walked over to the car of a relative that was parked in a nearby car park. She spoke to her relative. As…

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 Howell v Davies

Details

AGLC: Howell v Davies [2019] WASC 220
Case: [2019] WASC 220
Decision Date: 27 JUNE 2019

CaseChat Overview and Summary

Howell v Davies involved the appellant, Davies, who was sentenced to seven months' imprisonment for breaching a restraining order. The case was heard in the County Court of Victoria, where the appeal against the sentence was lodged. The appellant argued that the sentence was unjust and that the magistrate had erred in applying the principles set out in s 61A of the Sentencing Act 1991 (Vic). The key legal issues revolved around whether the sentence was appropriate and whether the magistrate had correctly applied the relevant legal principles in determining whether immediate imprisonment or a suspended sentence was warranted.

The court examined the criteria for assessing the justice of a sentence, including the seriousness of the offence and the appellant's criminal history. Given that the appellant had been convicted of at least two similar offences in the previous two years, the court found that the sentence was appropriate. The court held that the magistrate had correctly considered the circumstances of the case, including the need for deterrence and the protection of the community, when deciding on the appropriate sentence. The court concluded that there was no substantial miscarriage of justice and that the sentence was clearly appropriate in any event.

The appeal was dismissed, and the court granted the appellant leave to appeal and extended the time for filing the appeal. The court found that the magistrate had not erred in applying the principles of s 61A and that the sentence was just. The court held that the appellant's criminal history and the seriousness of the offence justified the sentence imposed. The court found that the magistrate had properly exercised their discretion in determining the appropriate sentence and that the sentence was not unjust.

Orders

Orders of the court

Extension of time granted

Leave to appeal granted

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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