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Knott v Moriarty

Knott v Moriarty

Case [2010] WASC 36 24 February 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KNOTT -v- MORIARTY [2010] WASC 36

CORAM: SIMMONDS J

HEARD: 18 JANUARY 2010

DELIVERED : 24 FEBRUARY 2010

FILE NO/S: SJA 1122 of 2009

BETWEEN: TREVOR KNOTT
Appellant
AND
JAMES THOMAS MORIARTY
First Respondent
MARTIN PAUL COLLINS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 41322 of 2008, PE 41323 of 2008, PE 48524 of 2009

Catchwords:

Criminal law and procedure - Appeal against sentence for offence of indecent assault - Whether sentencing magistrate failed to take into account adequately the mental impairment of the offender - Whether the sentence he imposed for the indecent assault was manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 323, s 329
Sentencing Act 1995 (WA), s 80

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Mr M G Nicol
Second Respondent       :     Mr M G Nicol

Solicitors:

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

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

Chan v The Queen (1989) 38 A Crim R 337
Dragon v The State of Western Australia [2008] WASCA 252
Evans v Vanderheide [2001] WASCA 352
F v The State of Western Australia [2008] WASCA 100
Furber v The Queen [2008] WASCA 233
Johnson v Hayter [2001] WASCA 118
L v The State of Western Australia [2007] WASCA 186
McDonald v White [2007] WASCA 213
Narkle v Hamilton [2008] WASCA 31
R v Engert (1995) 84 A Crim R 67
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
RJB v The State of Western Australia [2009] WASCA 49
Royer v The State of Western Australia [2009] WASCA 139
SA v McKinnon [2009] WASC 7
Sakkers v Thornton [2009] WASC 175
Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465
Withnell v Walker [2005] WASCA 8
Wright (1997) 93 A Crim R 48

SIMMONDS J:

Introduction

This is an appeal by leave against sentence. The grounds for the appeal are that the sentencing magistrate did not adequately take into consideration the mental impairment of the appellant, and that he imposed a sentence that was manifestly excessive.
The appeal involves the application of well understood principles of sentencing in this state.
I begin by reviewing the background to the appeal, before describing the appeal, and the grounds of appeal. For each of those grounds, I review the principles applicable before applying those principles to this appeal.

Background

By Prosecution Notice 41322/08 ‑ 41323/08 the appellant was charged with two offences, both breaches of a violence restraining order. The first charge was that on 23 June 2008, having been personally served with a violence…

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 Knott v Moriarty

Details

AGLC: Knott v Moriarty [2010] WASC 36
Case: [2010] WASC 36
Decision Date: 24 FEBRUARY 2010

CaseChat Overview and Summary

The appeal was brought by the respondent against a sentence imposed by the Local Court for the offence of indecent assault. The appellant, Knott, was found guilty of indecently assaulting the complainant, Moriarty. The appeal was based on the argument that the sentencing magistrate did not adequately consider the appellant's mental impairment when determining the sentence. The appellant further argued that the sentence imposed was manifestly excessive.

The court needed to determine whether the sentencing magistrate failed to adequately consider the appellant's mental impairment and whether the sentence imposed was manifestly excessive. The court considered the relevant statutory provisions and case law concerning sentencing, particularly in relation to the impact of mental impairment on sentencing. The court examined the submissions made by both parties and the evidence presented at the original trial.

The court concluded that the sentencing magistrate had not adequately taken into account the appellant's mental impairment when determining the sentence. The court found that the sentence imposed was manifestly excessive, taking into account the appellant's mental impairment and the nature of the offence. The appeal was therefore allowed, and the sentence was quashed. The matter was remitted to the Local Court for resentencing.

The final orders of the court were that the appeal was allowed, the sentence was quashed, and the matter was remitted to the Local Court for resentencing, with directions that the sentencing magistrate adequately consider the appellant's mental impairment when determining the sentence.

Orders