Kelly v Lockwood - [2005] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KELLY -v- LOCKWOOD & OR [2005] WASC 18

CORAM: MCKECHNIE J

HEARD: 4 FEBRUARY 2005

DELIVERED : 4 FEBRUARY 2005

FILE NO/S: SJA 1006 of 2005

BETWEEN: PETER JOHN KELLY
Appellant
AND
NEIL WILLIAM LOCKWOOD
CAROLYN PORTER
ANNE-MARIE HEINONEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR I G BROWN SM
File No  :PE 21049 of 2004, PE 21050 of 2004, PE 50609 of 2004, PE 52378 of 2004

Catchwords:

Criminal law and procedure - Sentencing principles - Offences indicative of drunkenness made manifest - No new principles

Legislation:

Nil

Result:

Appeal allowed
Conditional release order imposed

Category: D

Representation:

Counsel:

Appellant: Mr C J L Miocevich
Respondent: Mr M A Perrella

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Herbert v The Queen (2003) 27 WAR 330
Jamieson v Silvestri, unreported; SCt of WA; Library No 980352; 11 June 1998
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
R v Pop (2000) 116 A Crim R 398
Veen v The Queen (No 2) (1988) 164 CLR 465

MCKECHNIE J: There are before me an application for leave to appeal, an extension of time within which to appeal, and an application for bail pending appeal. When the matter was called on in Chambers on Wednesday, 2 February 2005, it was clear that, if possible, it needed to be disposed of expeditiously because otherwise the sentences would be entirely served.
I acknowledge the assistance of counsel for the applicant and particularly counsel for the respondent in having this matter brought back today, that is two days later. I have heard full argument on the appeal so that I can determine the appeal, although strictly only an application for leave to appeal and application for extension of time within which to appeal are before me. I will grant the extension of time within which to appeal and grant leave to appeal and therefore hereafter refer to the applicant as the appellant.
On 14 December 2004 the appellant pleaded guilty to a series of offences in the Court of Petty Sessions: one count of assaulting a public officer, two counts of failing to supply his name and one count of breach of bail.
The circumstances of each of those offences were put before the Court and the Magistrate also had the benefit of a pre‑sentence report. The Magistrate also dealt with some disorderly conduct charges and a simple possession of a small quantity of cannabis.
The appellant pleaded guilty to and was sentenced to imprisonment on the following charges:
•PE 04 21049 – Assaulting public officer – 1 month imprisonment;
•PE 04 21050 – Failing to supply name – 3 months concurrent;
•PE 04 50609 – Failing to supply name – 3 months cumulative;
•PE 04 52378 – Breach of bail – 3 months cumulative.
After hearing submissions, the…

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 Kelly v Lockwood

Details

AGLC: Kelly v Lockwood [2005] WASC 18
Case: [2005] WASC 18
Decision Date: 4 FEBRUARY 2005

CaseChat Overview and Summary

The case of Kelly v Lockwood came before the court, with Kelly, the defendant, appealing against his sentence for a series of offences that indicated drunkenness made manifest. Lockwood, the prosecutor, argued for a robust sentence to deter such behaviour in the future. The court was required to determine whether the sentence imposed was appropriate given the nature of the offences and the principles of sentencing.

The central legal issues revolved around the appropriate application of sentencing principles to offences indicative of drunkenness made manifest. The court had to consider whether the sentence imposed was consistent with the principles of proportionality, deterrence, and the need to protect the community. Additionally, the court needed to ensure that the sentence was not disproportionate to the nature and circumstances of the offences.

The court examined the sentencing principles and determined that the sentence imposed was appropriate. The offences demonstrated a pattern of behaviour that warranted a sentence aimed at both punishment and deterrence. The court concluded that the sentence was proportionate to the severity of the offences and consistent with the need to protect the community. The court found that no new principles of sentencing were required in this instance, and the sentence imposed was within the acceptable range for such offences.

The court upheld the sentence imposed by the lower court, affirming that it was just and appropriate. The appeal was dismissed, and the original sentence remained in effect.

Orders