LODER -v- THE QUEEN [2003] WASCA 168

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 168
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:78/2003	Heard:	22 JULY 2003
Coram:	MURRAY ACJ ANDERSON J STEYTLER J	Delivered:	4/08/03
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused
Category:	B
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Parties:	LOIS CLOVER LODER THE QUEEN
Catchwords:	Criminal law and procedure Appeal against sentence Accessory after fact to offence of robbery 18 months' imprisonment imposed Whether imposition of term of imprisonment rather than suspended sentence manifestly excessive Application of totality principle to intensive supervision order Turns on own facts
Legislation:	Criminal Code, s 393, s 562 Sentencing Act 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LODER -v- THE QUEEN [2003] WASCA 168 CORAM : MURRAY ACJ

ANDERSON J

STEYTLER J

HEARD : 22 JULY 2003 DELIVERED : 4 AUGUST 2003 FILE NO/S : CCA 78 of 2003 BETWEEN : LOIS CLOVER LODER

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Accessory after fact to offence of robbery - 18 months' imprisonment imposed - Whether imposition of term of imprisonment rather than suspended sentence manifestly excessive - Application of totality principle to intensive supervision order - Turns on own facts

Legislation:

Criminal Code, s 393, s 562

Sentencing Act1995

(Page 2)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant : Mr A E Monisse

Respondent : Ms L Petrusa & Mr S F Rafferty

Solicitors:

Applicant : Cohen Leonard & Co

Respondent : State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) CLR 321
Herbert v The Queen [2003] WASCA 61
Lowndes v The Queen (1999) 195 CLR 665
Magee v The Queen [1980] WAR 117

Case(s) also cited:

Etrelezis v The Queen [2001] WASCA 327
James v The Queen (1985) 14 A Crim R 364
Jarvis v The Queen (1993) 20 WAR 201
Kilner v The Queen [1999] WASCA 189
Miller v The Queen [2001] WASCA 426
O'Brien v Ritchie, unreported; SJA of WA; Library No 990123; 3 March 1999
R v Chan (1989) 38 A Crim R 337
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Millar [2001] WASCA 54
R v Mills (1977) 16 SASR 581
R v Rowe (1991) 52 A Crim R 196

(Page 3)

R v White (1977) 16 SASR 571
Thomson & Owen v The Queen (1998) 105 A Crim R 150
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 8 February 1999
Watson v The Queen [2000] WASCA 8

(Page 4)

1 MURRAY ACJ: I agree with Steytler J. Leave to appeal should be refused. I have nothing to add to his Honour's reasons.

2 ANDERSON J: I agree with the judgment of Steytler J.

3 It was well open…

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 Loder v The Queen

Details

AGLC: Loder v The Queen [2003] WASCA 168
Case: [2003] WASCA 168
Decision Date: 4 AUGUST 2003

CaseChat Overview and Summary

In the matter of Loder v The Queen, the appellant was convicted as an accessory after the fact to a robbery and was sentenced to 18 months’ imprisonment. The appellant applied for leave to appeal against the sentence, arguing that the term of imprisonment imposed was manifestly excessive and that the application of the totality principle to an intensive supervision order was inappropriate. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the sentence imposed was manifestly excessive when compared to the circumstances of the case and other relevant factors. The court also had to determine if the application of the totality principle to an intensive supervision order was appropriate.

The High Court found that the appellant’s argument that the term of imprisonment imposed was manifestly excessive was not supported by the evidence. The court noted that the appellant had a criminal history which included convictions for serious offences. Furthermore, the court held that the totality principle should be applied to the intensive supervision order, as it was an integral part of the sentence. The court found that the sentence was appropriate in the circumstances of the case and that the appellant had not demonstrated that the sentence was manifestly excessive. Consequently, the court dismissed the appeal and refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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