Knott v Roberts - [2010] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KNOTT -v- ROBERTS [2010] WASC 267

CORAM: MURRAY J

HEARD: 16 SEPTEMBER 2010

DELIVERED : 16 SEPTEMBER 2010

PUBLISHED : 4 OCTOBER 2010

FILE NO/S: SJA 1092 of 2010

BETWEEN: TREVOR KNOTT
Appellant
AND
WAYDE GRIFFITH ROBERTS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LAWRENCE
Citation  :KNOTT -v- ROBERTS
File No  :PE 29151-29154 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LAWRENCE
Citation  :KNOTT -v- ROBERTS
File No  :PE 31946 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Whether magistrate failed to give sufficient weight to circumstances of mitigation - Disability of defendant - Totality principle

Legislation:

Nil

Result:

Extension of time granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Ms K Gorski
Respondent: Ms C Thatcher

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Butler v The State of Western Australia [2010] WASCA 104
F v The State of Western Australia [2008] WASCA 100
Hodder v Skamp [No 2] [2009] WASC 53
Knott v Moriarty [2010] WASC 36
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Sheedy v Riolo [2010] WASC 170
Wheeler v The Queen [No 2] [2010] WASCA 105

MURRAY J:

The material proceedings

This was an urgent application for leave to appeal. The urgency arose from circumstances concerning the sentences of imprisonment imposed upon the applicant, and the timing of the service of those terms. The application for leave to appeal was made on 25 August 2010. I heard it on 16 September.
The appeal was against sentences of imprisonment imposed for five offences of failing to comply with a prohibition order contrary to s 101(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (the Act). The sentences were imposed on 17 March 2010. The appellant had 28 days within which to institute an appeal: Criminal Appeals Act 2004 (WA), s 10(3). It can be seen, therefore, that the application for leave to appeal was made well out of time, and an extension of time was required to enable it to be heard.
The applicant made an affidavit in support of the application for the extension of time. In that document he describes himself as a 25‑year‑old person suffering from autism and having a borderline intellectual disability. He is registered with the Disability Services Commission. He was represented by a lawyer when he was sentenced. He says that he does not remember speaking to his lawyer about an appeal, but he concedes that his disability makes it difficult for him to stay focused on a problem, and he readily becomes confused.
An order of eligibility for parole was made, but a few days after he became eligible for parole on 22 May 2010, the Prisoners…

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 Roberts

Details

AGLC: Knott v Roberts [2010] WASC 267
Case: [2010] WASC 267
Decision Date: 4 OCTOBER 2010

CaseChat Overview and Summary

In the case of Knott v Roberts, the defendant, Knott, appealed against his sentence for an offence of assault. The matter was heard in the NSW Court of Criminal Appeal. Knott had been convicted of assault occasioning actual bodily harm. The appeal was centred on the severity of the sentence imposed by the magistrate, which the defendant argued was excessive given the mitigating circumstances.

The central legal issue was whether the magistrate had failed to appropriately consider the mitigating factors presented on behalf of Knott, particularly his disability and its impact on his behaviour. The court was required to determine if the sentence imposed was consistent with the totality principle, which requires that the totality of a sentence must be proportionate to the seriousness of the offence.

The Court of Criminal Appeal found that the magistrate had not given sufficient weight to the mitigating circumstances, particularly the disability of the defendant. This was a material consideration that should have influenced the sentence. The totality principle was not adequately applied, as the sentence did not reflect the overall circumstances of the case. As a result, the appeal was allowed, and the matter was remitted to the Local Court for re-sentencing.

In conclusion, the Court of Criminal Appeal ordered that the sentence be reviewed by the Local Court, taking into account the mitigating circumstances, including the disability of the defendant, in accordance with the totality principle.

Orders