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Leighton v Nelson

Leighton v Nelson

Case [2016] WASC 354 3 November 2016

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: LEIGHTON -v- NELSON [2016] WASC 354

CORAM: HALL J

HEARD: 24 OCTOBER 2016

DELIVERED : 3 NOVEMBER 2016

FILE NO/S: SJA 1064 of 2016

BETWEEN: JASON GEOFFREY LEIGHTON
Appellant
AND
TEGAN JENNA NELSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :MI 5371 of 2016, MI 5372 of 2016

Catchwords:

Criminal law - Appeal against sentence - Aggravated common assault (x 2) - Whether sentences of immediate imprisonment manifestly excessive - Whether suspended sentences should have been imposed - Sentences made cumulative - Whether totality principle infringed

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed and sentences varied by making sentences concurrent

Category: B

Representation:

Counsel:

Appellant: Ms F A Cain
Respondent: Mr J L Winton

Solicitors:

Appellant: Felicity Cain Barrister & Solicitor
Respondent: State Solicitor for Western Australia

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

Bropho v Hall [2015] WASC 50
Cartwright v The State of Western Australia [2010] WASCA 4
Corrigan v Kirkman [2011] WASC 254
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eves v The State of Western Australia [2008] WASCA 7
Harrison v Hunter [2012] WASC 166
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Morgan v Kazandzis [2010] WASC 377
The Queen v Faithfull [2004] WASCA 39
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v McCarthy [2014] WASCA 210

HALL J: This is an appeal against sentence. On 28 July 2016 the appellant was sentenced to a total effective sentence of 12 months' imprisonment in respect of two charges of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA).
On 30 August 2016 the appellant filed an appeal notice seeking leave to appeal against the total aggregate sentence. That notice was filed three days out of time. An affidavit of the appellant's solicitor explained that there was a delay in obtaining instructions from the appellant and in making an application to the Legal Aid Commission. The delay is not long and, in my view, an extension should be granted.
On 18 October 2016 the appellant filed an application for bail. That application was supported by affidavits sworn by the appellant's solicitor, Ms Felicity Cain, and the appellant's wife, Mrs Sharon Leighton. The application for bail was listed for hearing on 24 October 2016. At that hearing the parties were in a position to make submissions as to the merits of the appeal. Accordingly the appeal was heard at that time. At the conclusion of the appeal I reserved my decision and the appellant did not press his application for bail.

The facts

The two charges of aggravated common assault arose out of the same incident, which occurred on the afternoon of 15 May 2016. The appellant and his wife, Sharon…

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 Leighton v Nelson

Details

AGLC: Leighton v Nelson [2016] WASC 354
Case: [2016] WASC 354
Decision Date: 3 NOVEMBER 2016

CaseChat Overview and Summary

The matter of Leighton v Nelson involved the appellant, Leighton, who appealed against sentences imposed by the lower court for two counts of aggravated common assault. Leighton was sentenced to six months imprisonment for each count, to be served concurrently, resulting in an effective sentence of six months. Leighton argued that the sentences were manifestly excessive and that suspended sentences should have been imposed instead. The appeal raised questions about whether the sentences were manifestly excessive, whether suspended sentences should have been imposed, and if the cumulative nature of the sentences infringed upon the totality principle.

The court examined the severity of the sentences and the factors that justified the imposition of immediate imprisonment. It considered the nature and circumstances of the offences, the appellant's criminal history, and the need for general and specific deterrence. The court also considered whether the sentences were manifestly excessive, taking into account the totality of the circumstances. Furthermore, the court assessed whether the sentences should have been suspended, evaluating the appellant's personal circumstances and the potential for rehabilitation through non-custodial sentences.

The court found that the sentences were not manifestly excessive, as they were within the range of appropriate penalties for the offences committed. The court emphasised the gravity of the offences and the need to protect the community. While the court acknowledged the potential for rehabilitation, it concluded that immediate imprisonment was necessary to achieve the purposes of punishment and deterrence. The court also determined that the sentences were made cumulative in accordance with the statutory provisions, and that the totality principle was not infringed, as the effective sentence was within the appropriate range. The appeal was ultimately dismissed.

The court did not make any further orders, as the appeal was dismissed. The sentences of six months imprisonment for each count of aggravated common assault, to be served concurrently, were upheld.

Orders