Langdon v Kelemete-Leoli-McLean - [2010] WASC 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LANGDON -v- KELEMETE-LEOLI-MCLEAN [2010] WASC 82

CORAM: McKECHNIE J

HEARD: 27 APRIL 2010

DELIVERED : 27 APRIL 2010

FILE NO/S: SJA 1147 of 2009

BETWEEN: LEONARD ROBERT LANGDON
Appellant
AND
ROBERT CLEMENT KELEMETE-LEOLI-MCLEAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D N JONES
File No  :PE 56233 of 2008, PE 56234 of 2008

Catchwords:

Criminal law and procedure - Sentence - Assault occasioning bodily harm - Whether consequence of grievous bodily harm can be taken into account - Lewis v Polidano not followed - Whether sentences manifestly excessive

Legislation:

Sentencing Act 1995 (WA), s 7(3)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr R McK Utting
Respondent: Mr M A Holgate

Solicitors:

Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)

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

Hooper v The Queen (2003) 27 WAR 264
Lewis v Polidano [2003] WASCA 312
Mourish v The State of Western Australia [2006] WASCA 257
R v De Simoni (1981) 147 CLR 383
The State of Western Australia v Camilleri [2008] WASCA 217
Trompler v The State of Western Australia [2008] WASCA 265

McKECHNIE J: Mr Langdon is 20. On 10 August 2008 when he was still 19, he went into Northbridge with some friends. Walking home slightly intoxicated, he saw Mr Feeney doing something that displeased him so he hit him in the face.
Mr Noori was nearby, but looking away when Mr Langdon punched him in the head. Mr Noori fell unconscious to the ground and has now lost his sense of smell and has an indefinite prognosis on his sense of taste. Mr Langdon did little to help either man and walked off.
Mr Langdon was charged with assault occasioning bodily harm to both men. He stood trial, was convicted and sentenced to concurrent terms of 8 and 15 months immediate imprisonment with a parole eligibility order from 23 November 2009. He appeals against those sentences.

The issues

•Were the sentences excessive?
No.
•Should the sentences be suspended?
No.
•Should the magistrate have taken into account that Noori suffered grievous bodily harm?
Yes.

Were the sentences excessive?

An adjustment to the sentence of 8 months for the offence against Feeney is necessary only if the sentence of 15 months respecting Noori is set aside.
Leaving aside the question of suspension for the moment, the sentence respecting Feeney is clearly in range.
The submission on excessiveness was made chiefly by comparison with other sentences.
Both counsel referred to many decisions of this court and the Court of Appeal to bolster their submission that the sentence in respect of Mr Noori is or is not excessive. Many are gathered together in Mourish v The State of Western Australia [2006] WASCA 257 at [12] and earlier in Hooper v The Queen (2003) 27 WAR 264 from [129] while The State of Western Australia v Camilleri [2008] WASCA 217 sets out ranges for both assault occasioning…

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.

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Details

Case: [2010] WASC 82
Decision Date: 27 APRIL 2010

CaseChat Overview and Summary

In Langdon v Kelemete-Leoli-McLean, the appellant, Langdon, was convicted of assault occasioning bodily harm and sentenced to a term of imprisonment. Langdon appealed against his sentence, arguing it was manifestly excessive. The respondent, Kelemete-Leoli-McLean, argued that the sentence was appropriate given the nature of the offence and the appellant's criminal history.

The court considered whether the consequence of grievous bodily harm could be taken into account when sentencing for assault occasioning bodily harm, and whether the sentence was manifestly excessive. The court held that the consequence of grievous bodily harm could be taken into account, and that the sentence was not manifestly excessive. The court found that the appellant's criminal history and the circumstances of the offence warranted a sentence of imprisonment, and that the sentence imposed was within the range of sentences that could be considered appropriate.

The court rejected the appellant's argument that the sentence was manifestly excessive, and dismissed the appeal. The court held that the sentence imposed was not manifestly excessive, and that the appellant had not demonstrated that the sentence was unjust or disproportionate to the offence committed. The court found that the sentence imposed was within the range of sentences that could be considered appropriate, and that the appellant's criminal history and the circumstances of the offence warranted a sentence of imprisonment. The court held that the sentence imposed was not manifestly excessive, and dismissed the appeal.

Orders