King v WA Police - [2024] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KING -v- WA POLICE [2024] WASC 72
CORAM:   SOLOMON J
HEARD:   1 MARCH 2024
DELIVERED          :   1 MARCH 2024
FILE NO/S:   SJA 1061 of 2023
BETWEEN:   BOSTON KING
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1061 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   MI 642/2023
MI 643/2023

Catchwords:

Animal cruelty - Reckless driving - Appeal against sentence - Manifestly excessive sentence - Suspension of term of imprisonment - Turns on own facts

Legislation:

Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant	:	Ms A Antoine
Respondent	:	Ms SJ Keighery

Solicitors:

Appellant	:	Perrella Legal
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Fogg v Western Australia [2011] WASCA 11
Holding v Parkin [2012] WASC 113
Kabambi v The State of Western Australia [2019] WASCA 44
Rubin v The State of Western Australia [2016] WASCA 2
The House of Relocators v Ginbey [2014] WASCA 94
Van der Laan v Lang [2023] WASC 200
Woodhouse v Leslie [2023] WASC 11

SOLOMON J:

(This judgment was delivered extemporaneously on 1 March 2024 and has been edited from the transcript).

In March 2023, the appellant Boston King pleaded guilty to one count of animal cruelty contra to s 19(1) of the Animal Welfare Act 2002 (WA) (Animal Welfare Act).
The matter was ultimately adjourned for sentencing on 1 August 2023. The Statement of Material Facts was read to the Magistrates Court in respect of the guilty plea as follows: At about 12.20 am on Saturday 24 December 2022, the accused was driving his vehicle, a white Toyota Landcruiser. He was driving along Clarkson Road in Bullsbrook with two male friends on board. As he reached the southern end of Clarkson Road, the accused saw a kangaroo and took deliberate action to aim his vehicle towards the animal. The accused deliberately drove his vehicle off the road onto the verge and used his vehicle to intentionally collide with the kangaroo. The accused then stopped his vehicle and got out. He approached the unmoving kangaroo and, using a knife, proceeded to sever one of the kangaroo's back legs and its tail from its body. The accused left the tail on the ground next to the body and hung the leg on a picket fence. The accused returned to his vehicle and continued to drive on Clarkson Road again using his vehicle to intentionally run down a number of other kangaroos on the road, road verge, and sides of the road. He then travelled back up Clarkson Road and returned on to Gibbard Place where the accused ran down a number of other kangaroos in the same manner. CCTV footage captured the vehicle leaving the road and mounting the verge in pursuit of two kangaroos. Other…

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 King v WA Police

Details

AGLC: King v WA Police [2024] WASC 72
Case: [2024] WASC 72
Decision Date: 1 MARCH 2024

CaseChat Overview and Summary

In the matter of King v WA Police, the respondent, a police officer, appealed against his sentence for charges of animal cruelty and reckless driving. The respondent had been involved in an incident in which he had run over a dog and subsequently failed to stop at a police checkpoint. The Court of Appeal was required to determine whether the sentence imposed by the lower court was manifestly excessive and to consider whether the sentence should be suspended. The primary judge had sentenced the respondent to a term of imprisonment, which was to be suspended for a period of two years, and ordered him to perform 150 hours of community service.

The Court of Appeal considered whether the sentence was manifestly excessive by examining the circumstances of the case, the relevant sentencing principles, and the sentencing options available to the primary judge. The Court determined that the sentence was not manifestly excessive and upheld the primary judge's decision. The Court also considered whether the sentence should be suspended and found that the primary judge had appropriately exercised his discretion in suspending the term of imprisonment for two years. The Court concluded that the sentence was proportionate to the seriousness of the offending and that the primary judge had appropriately considered all relevant factors in determining the sentence.

The Court of Appeal dismissed the respondent's appeal against his sentence. The Court found that the sentence was not manifestly excessive and that the primary judge had appropriately exercised his discretion in suspending the term of imprisonment. The Court noted that the respondent had shown remorse for his actions and had taken steps to address the underlying issues that led to his offending. The Court emphasised that each case turns on its own facts and that the sentence imposed must be proportionate to the seriousness of the offending.

Orders