LUCKMAN -v- LEUCUS [2001] WASCA 57

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 57
Case No:	SJA:1194/2000	Heard:	15 FEBRUARY 2001
Coram:	ROBERTS-SMITH J	Delivered:	2/03/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed,Sentence set aside and sentence of 18 months imprisonment substituted, to be partly concurrent and partly cumulative with sentence imposed by Fenbury DCJ on 14 September 2000
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Parties:	DAMIEN NELSON LUCKMAN MONY LEUCUS
Catchwords:	Appeal Sentence Aggravated stalking Term of 12 months imprisonment concurrent with earlier term of 2-1/2 years imposed by District Court for threatening to kill same complainant Prosecution appeal Whether sentence should have been cumulative
Legislation:	Criminal Code (WA), s 338B, s 338E(1)(c)
Case References:	R v Grein [1989] WAR 178 R v Leucus, unreported; CCA SCt of WA; Library No 950130; 24 March 1995 Ward (1999) 109 A Crim R 159 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LUCKMAN -v- LEUCUS [2001] WASCA 57 CORAM : ROBERTS-SMITH J HEARD : 15 FEBRUARY 2001 DELIVERED : 2 MARCH 2001 FILE NO/S : SJA 1194 of 2000 BETWEEN : DAMIEN NELSON LUCKMAN

Appellant

AND

MONY LEUCUS

Respondent

Catchwords:

Appeal - Sentence - Aggravated stalking - Term of 12 months imprisonment concurrent with earlier term of 2-1/2 years imposed by District Court for threatening to kill same complainant - Prosecution appeal - Whether sentence should have been cumulative

Legislation:

Criminal Code (WA), s 338B, s 338E(1)(c)

Result:

Appeal allowed

Sentence set aside and sentence of 18 months imprisonment substituted, to be partly concurrent and partly cumulative with sentence imposed by Fenbury DCJ on 14 September 2000

(Page 2)

Representation:

Counsel:

Appellant : Ms S E Walker

Respondent : Mr A Palumbo

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Alex Palumbo

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

R v Grein [1989] WAR 178
R v Leucus, unreported; CCA SCt of WA; Library No 950130; 24 March 1995
Ward (1999) 109 A Crim R 159

Case(s) also cited:

Nil

(Page 3)

1 ROBERTS-SMITH J: On 3 August 2000 the respondent pleaded guilty to a charge on indictment and was convicted of the offence that on 13 January 2000 he made a threat to unlawfully kill Susan Patricia Morley, contrary to s 338B of the Criminal Code (WA). On 14 September 2000, he was sentenced by Fenbury DCJ to imprisonment for 2-1/2 years backdated to 29 August 2000 with eligibility for parole in respect of that offence.

2 On 20 May 2000 the respondent was charged on complaint with an offence that between 22 March and 19 May 2000 he stalked M S Morley with intent to cause fear, in circumstances of aggravation, contrary to s 338E(1)(c) of the Criminal Code.

3 The respondent pleaded guilty to that charge before Mr Burton SM in the Perth Court of Petty Sessions on 26 September 2000 and was sentenced to 12 months imprisonment backdated to 20 May 2000. The sentence was ordered to…

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 Luckman v Leucus

Details

AGLC: Luckman v Leucus [2001] WASCA 57
Case: [2001] WASCA 57
Decision Date: 2 MARCH 2001

CaseChat Overview and Summary

The case of Luckman v Leucus involved an appeal against a sentence imposed for aggravated stalking. The appellant, Luckman, was convicted of stalking and threatening to kill the same complainant, for which he was sentenced to a term of 12 months imprisonment. This sentence was to run concurrently with an earlier sentence of 2-1/2 years imposed by the District Court for threatening to kill the same complainant. The prosecution appealed, arguing that the sentence should have been cumulative rather than concurrent. The court considered whether the sentencing judge had erred in imposing a concurrent sentence.

The legal issue before the court was whether the sentencing judge had correctly applied the principles of sentencing in relation to concurrent and cumulative sentences. The court had to determine whether the sentence imposed was appropriate in the circumstances and whether there was an error in the application of the law regarding concurrent and cumulative sentences. The appeal hinged on the interpretation of the relevant sentencing legislation and the principles governing concurrent and cumulative sentences.

The court found that the sentencing judge had misapplied the principles of sentencing in relation to concurrent and cumulative sentences. The court held that the sentence should have been cumulative, meaning that the 12 months imprisonment should have been added to the 2-1/2 years already imposed by the District Court. The court held that the sentencing judge had not adequately considered the need to deter the appellant from engaging in similar offending and to protect the community from the appellant's behaviour. The court allowed the appeal and set aside the original sentence, substituting a sentence of 18 months imprisonment, to be partly concurrent and partly cumulative with the sentence imposed by the District Court.

Orders

Orders of the court

Appeal allowed,Sentence set aside and sentence of 18 months imprisonment substituted, to be partly concurrent and partly cumulative with sentence imposed by Fenbury DCJ on 14 September 2000

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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