KIRK -v- JACKSON [2016] WASC 17

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 17
Case No:	SJA:1080/2015	Heard:	20 JANUARY 2016
Coram:	MARTINO J	Delivered:	20/01/16
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	DESMOND LEE KIRK DION CRAIG JACKSON DAVID TREVOR HACKETT
Catchwords:	Appeal against sentence Totality Failure to refer to reduction in sentences for pleas of guilty
Legislation:	Sentencing Act 1995 (WA), s 9AA
Case References:	H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 Huynh v The State of Western Australia [2012] WASCA 8 Roberts v The State of Western Australia [2014] WASCA 239 Roffey v The State of Western Australia [2007] WASCA 246 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Wiltshire v Mafi [2010] WASCA 111 Woods v The Queen (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : KIRK -v- JACKSON [2016] WASC 17 CORAM : MARTINO J HEARD : 20 JANUARY 2016 DELIVERED : 20 JANUARY 2016 FILE NO/S : SJA 1080 of 2015 BETWEEN : DESMOND LEE KIRK

Appellant

AND

DION CRAIG JACKSON

DAVID TREVOR HACKETT

Respondents

Catchwords:

Appeal against sentence - Totality - Failure to refer to reduction in sentences for pleas of guilty

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : In person

Respondents : Ms G N Beggs

Solicitors:

Appellant : In person

Respondents : Director of Public Prosecutions (WA)

Cases referred to in judgment:

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Huynh v The State of Western Australia [2012] WASCA 8
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v The State of Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Wiltshire v Mafi [2010] WASCA 111
Woods v The Queen (1994) 14 WAR 341

1 MARTINO J: On 30 September 2015 the appellant, Mr Kirk, was sentenced, on his pleas of guilty, to a total effective sentence of 2 years and 3 months' imprisonment to be served. Mr Kirk seeks leave to appeal against that sentence. His one ground of appeal on his appeal notice was:

There was an error of law whereby the learned Magistrate failed to apply the first limb of the principle of totality resulting in a sentence which is manifestly excessive in all the circumstances.

2 On 16 December 2015 the court made the following orders:

1. The application for leave to appeal is to be heard at the same time as the appeal.

2. An appeal book is not required to be lodged.

3. The appellant file and serve a short outline of his submissions on or before 4.00 pm on Monday 11 January 2016.

4. The respondent file and serve written submissions on or…

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 Kirk v Jackson

Details

AGLC: Kirk v Jackson [2016] WASC 17
Case: [2016] WASC 17
Decision Date: 20 JANUARY 2016

CaseChat Overview and Summary

In the case of Kirk v Jackson, the appellant, Kirk, appealed against the sentence imposed on him by the lower court. The appeal was heard by the Supreme Court of Queensland. The nature of the dispute was centred around the severity of the sentence and whether the lower court had properly considered the principle of totality in determining the overall sentence. Kirk argued that the lower court had failed to adequately take into account the reduction in sentences for pleas of guilty, which resulted in an unduly harsh sentence.

The legal issues before the court were whether the lower court had erred in failing to consider the principle of totality and whether the sentence imposed was manifestly excessive. The appellant contended that the court had not adequately weighed the benefit of a plea of guilty, which should have resulted in a lesser sentence. Kirk also submitted that the sentence imposed was manifestly excessive when considering the totality of the offending and the mitigating factors present in the case.

The Supreme Court of Queensland found that the lower court had indeed failed to appropriately apply the principle of totality in determining the sentence. The court held that the lower court had not given sufficient consideration to the reduction in sentences for pleas of guilty, which was a significant factor in the overall sentencing process. The appellate court determined that the sentence imposed was manifestly excessive, taking into account all the circumstances of the case, including the mitigating factors. As a result, the appeal was allowed, and the sentence imposed by the lower court was set aside.

Orders

Orders of the court

Appeal allowed

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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