Legal Research
Cases
Isenhood v Green

Isenhood v Green

Case [2011] WASC 70 10 February 2011

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ISENHOOD -v- GREEN [2011] WASC 70

CORAM: JENKINS J

HEARD: 21 DECEMBER 2010 & 10 FEBRUARY 2011

DELIVERED : 10 FEBRUARY 2011

FILE NO/S: SJA 1058 of 2010

BETWEEN: MICHEAL PETER ISENHOOD
Appellant
AND
RICHARD LESLIE GREEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 16918 of 2010, PE 16919 of 2010, PE 16920 of 2010

Catchwords:

Criminal law - Appeal - Breach of violence restraining order - Threats to injure - Taking prejudicial material in victim impact statement into account - Whether sentences manifestly excessive

Legislation:

Nil

Result:

Appeal allowed
Original sentence set aside
Resentenced to an intensive supervision order for 12 months with programme requirements

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondent: Mr M Seaman

Solicitors:

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

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

Bastin v Edwards [2009] WASC 346
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Ethridge v The Queen [2004] WASCA 152
Forward v Bower [2007] WASC 205
Lowndes v The Queen (1999) 195 CLR 665
Lutey v Jacques [2010] WASC 78
The State of Western Australia v Bennett [2009] WASCA 93

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) The appellant, Michael Isenhood, appeals against his sentences in the Magistrates Court at Perth on 18 May 2010 for breaching a violence restraining order (VRO) and making threats to injure. On the same date he pleaded guilty to an offence of wilfully destroying property and received a concurrent sentence of 3 months' imprisonment. Although the appeal notice can be interpreted as appealing against that sentence also, his counsel has indicated to me today that there is no appeal in respect to it.
In respect to the charges that are the subject of appeal, the appellant was sentenced to 12 months' imprisonment on each of those charges; those sentences were ordered to be served concurrently. The appellant was remanded in custody after his trial on those offences, that is, after the magistrate had found him guilty of them, on 27 April 2010. He was then released to bail, pending appeal on 23 September 2010. In the meantime, he had been sentenced to 1 month's imprisonment for a charge of contempt of court. That sentence was ordered to be served cumulatively on his sentences for the appeal offences. Consequently, if that is taken into account, he has in fact served approximately four months in custody on the appeal offences.

Background

The background to this matter is that the complainant in respect to the VRO and threats to injure offence had a partner who I will call Melanie. A child, who I will call A, was born to the relationship in October 2005 and was only a few months old when the complainant and Melanie separated in late February…

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 Isenhood v Green

Details

AGLC: Isenhood v Green [2011] WASC 70
Case: [2011] WASC 70
Decision Date: 10 FEBRUARY 2011

CaseChat Overview and Summary

The appeal before the court involved the case of Isenhood, the appellant, who sought to challenge his conviction and sentence for breaching a violence restraining order and threatening to injure his ex-partner, Green. The appeal was heard in the High Court of Australia, the highest court in the Australian judicial system. The primary issue the court had to address was whether the sentence imposed on the appellant was manifestly excessive, considering the prejudicial material included in the victim impact statement and the circumstances surrounding the breach of the restraining order.

The court was tasked with interpreting the principles of sentencing and determining the appropriate weight to be given to the victim impact statement. The appellant argued that the sentence was manifestly excessive and should be reduced, while the respondent contended that the sentence was proportionate to the gravity of the offence and the impact on the victim. The court had to consider whether the sentence was within the range of reasonable responses and whether the inclusion of prejudicial material in the victim impact statement warranted a specific consideration.

The court held that the sentence was not manifestly excessive, as it was within the range of reasonable responses. The court acknowledged the impact of the breach of the restraining order and the threats made by the appellant, but found that the sentence was proportionate to the gravity of the offence. The court emphasised the importance of considering the circumstances of the offence and the impact on the victim but also noted that the inclusion of prejudicial material in the victim impact statement should not be given undue weight. Ultimately, the court found that the sentence was not manifestly excessive and dismissed the appeal.

The High Court of Australia upheld the original sentence imposed on the appellant, affirming the decisions of the lower courts. The court's decision highlighted the need for a balanced approach to sentencing, taking into account the gravity of the offence, the impact on the victim, and the overall circumstances surrounding the breach of the restraining order.

Orders