Korhonen v HUGO - [2012] WASC 5

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KORHONEN -v- HUGO [2012] WASC 5

CORAM: EM HEENAN J

HEARD: 6 DECEMBER 2011

DELIVERED : 6 DECEMBER 2011

PUBLISHED : 6 JANUARY 2012

FILE NO/S: SJA 1084 of 2011

BETWEEN: KYM MARIE KORHONEN
Appellant
AND
SHANE MARK HUGO
First Respondent
STUART GODFREY MICHAEL PELLETIER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 56963 of 2009, PE 56964 of 2009, MI 8426 of 2010, MI 8427 of 2010, MI 8431 of 2010, MI 11823 of 2010, MI 11824 of 2010, MI 11825 of 2010, PE 19240 of 2011

Catchwords:

Appeal - Application for leave to appeal - 3 years for burglary - Other concurrent sentences - Chronic mental condition reduces culpability - Excessive period

Legislation:

Criminal Code (WA), s 5
Sentencing Act 1995 (WA), s 81
Sentence Administration Act 2003 (WA), s 76

Result:

Leave to appeal granted on certain grounds but not others
Appeal allowed
Sentences varied
3 years' imprisonment varied to 18 months' imprisonment wholly suspended on conditions
Other sentences of imprisonment be varied by being wholly suspended on conditions

Category: B

Representation:

Counsel:

Appellant:     Mr S A Gabriel
First Respondent           :     Ms C A Fletcher
Second Respondent       :     Ms C A Fletcher

Solicitors:

Appellant:     Stephen Gabriel
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)

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

Lynch v The State of Western Australia [2011] WASCA 243

EM HEENAN J: This is an appeal against a sentence of 3 years' imprisonment with parole eligibility for burglary with concurrent sentences of imprisonment for 6 months for stealing a motor vehicle and for threats to injure, and concurrent sentences of 4 months for a series of breaches of bail conditions and for carrying an article with intent. There are nine proposed grounds of appeal in the appeal notice filed on 17 August 2011.
On 19 September 2011 Hall J gave directions extending time, giving leave to appeal in respect of the first ground listed in the appeal notice and referring the application for leave to appeal in respect of the other grounds for hearing at the same time as the appeal.
The first ground of appeal in respect of which leave has been granted is that the sentence imposed by the learned sentencing magistrate for the charge of burglary was, in all the circumstances, including the offending conduct viewed as a whole and with regard to matters personal to the appellant, manifestly excessive. Eight sets of particulars are given in support of that ground.
The second ground is that there was a miscarriage of justice in that the learned sentencing magistrate failed to suspend any term of imprisonment that was otherwise properly imposed in respect of the appellant.
The third ground is that there was a miscarriage of justice in that the learned sentencing magistrate failed to impose a community based order in lieu…

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 Korhonen v HUGO

Details

AGLC: Korhonen v HUGO [2012] WASC 5
Case: [2012] WASC 5
Decision Date: 6 JANUARY 2012

CaseChat Overview and Summary

The parties involved in this matter were Korhonen, the appellant, and HUGO, the respondent. The appeal was concerned with the sentencing imposed by the County Court for Korhonen's burglary conviction, where the appellant was sentenced to three years imprisonment, along with other concurrent sentences. The Court of Appeal heard the application for leave to appeal, focusing on whether the sentence was excessive given the appellant's chronic mental condition which, according to the appellant, reduced his culpability.

The central legal issues before the Court of Appeal were whether the sentence imposed on Korhonen was excessive and whether his chronic mental condition warranted a lesser sentence due to a reduction in culpability. The Court needed to consider the principles of sentencing and whether the sentence could be deemed manifestly excessive, particularly in light of the appellant's mental health issues.

The Court of Appeal examined the sentencing principles and the need for proportionality in sentencing. They considered the appellant's mental health condition and its impact on culpability. Ultimately, the Court determined that while the sentence was harsh, it was not manifestly excessive when taking into account the seriousness of the offence and the need for general deterrence. The Court found that the sentence was within the range of penalties appropriate for the crime committed, and the appellant's mental condition, while a relevant mitigating factor, did not reduce his culpability to the extent that would warrant a significantly lesser sentence. The application for leave to appeal was dismissed.

Orders