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Lutey v Jacques

Lutey v Jacques

Case [2010] WASC 78 28 April 2010

Appeal

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LUTEY -v- JACQUES [2010] WASC 78

CORAM: SIMMONDS J

HEARD: 5 FEBRUARY 2010

DELIVERED : 28 APRIL 2010

FILE NO/S: SJA 1146 of 2009

BETWEEN: CLIFF GREGORY LUTEY
Appellant
AND
STEVEN WILLIAM THOMAS JACQUES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT KARRATHA
Coram  :MAGISTRATE P ROTH
File No  :KH 2178 of 2009

Catchwords:

Appeal - Criminal law and procedure - Appeal by leave against 7 month sentence of suspended imprisonment for breach of violence restraining order - Whether sentences other than imprisonment adequately considered - Whether reasons were inadequate so as to produce injustice - Whether sentence manifestly excessive in view of particular factors - Standards of sentencing customarily observed with respect to the crime - Offence not involving threats or intimidation but indications of intention to self-harm

Legislation:

Family Violence Act 2008 (Vic), s 5, s 7 s 8
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39, s 68, s 76, s 86

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Ms L White

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Bastin v Edwards [2009] WASC 346
Cullen v Rollings [2009] WASC 80
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dominik v Kay [2003] WASCA 174
Dominik v Volpi [2004] WASCA 18
Dragon v The State of Western Australia [2008] WASCA 252
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Forward v Bower [2007] WASC 205
Furber v The Queen [2008] WASCA 233
Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530
Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marshall v Lockyer [2006] WASCA 58
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pillage v Coyne [2000] WASCA 135
Powell v The State of Western Australia [2010] WASC 54
Sakkers v Thornton [2009] WASC 175
Sheppard v Blakely [2001] WASCA 309
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Yates v The State of Western Australia [2008] WASCA 144

SIMMONDS J:

Introduction

This is an appeal against a sentence of suspended imprisonment for one of three counts of the offence in Restraining Orders Act 1997 (WA) s 61(1) (Restraining Orders Act) of breach of a violence restraining order.
The background to the sentencing was as follows.
On 26 November 2009 the appellant had appeared in the Magistrates Court in Karratha before Magistrate Roth. The appellant pleaded guilty to three counts of the offence of breach of a violence restraining order. The first offence was committed between 12 ‑ 18 November 2009, the second offence was committed on 20 November 2009 and the…

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 Lutey v Jacques

Details

AGLC: Lutey v Jacques [2010] WASC 78
Case: [2010] WASC 78
Decision Date: 28 APRIL 2010

CaseChat Overview and Summary

Lutey v Jacques involved an appeal by the defendant, Lutey, against a sentence of seven months' suspended imprisonment imposed for breaching a violence restraining order. The nature of the dispute centred on the adequacy of the sentence and whether alternative penalties were adequately considered by the trial court. The matter was heard in the Court of Appeal, which was tasked with determining whether the sentence was manifestly excessive and whether the reasons provided by the trial court were insufficient to produce injustice.

The legal issues before the court included whether the trial judge had adequately considered alternative sentences, whether the reasons provided were inadequate to the point of producing injustice, and whether the sentence was manifestly excessive considering the circumstances. The appeal also questioned whether the sentence aligned with the standards of sentencing customarily observed for such offences, particularly those not involving threats or intimidation but indicating an intention to self-harm.

The Court of Appeal found that the trial judge did not adequately consider alternative sentences and that the reasons provided were insufficient, leading to injustice. The court held that the sentence was manifestly excessive given the particular factors of the case, particularly as the offence did not involve threats or intimidation. The court concluded that the sentence did not align with the standards of sentencing typically observed for similar offences. Consequently, the appeal was allowed, and the sentence was quashed.

Orders