MALATESTA -v- PINCH [2001] WASCA 224

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 224
Case No:	SJA:1022/2001	Heard:	30 JULY 2001
Coram:	MILLER J	Delivered:	30/07/01
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences of finite imprisonment quashed and sentences of suspended imprisonment imposed in lieu thereof
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Parties:	JASON DAVID MALATESTA BRADLEY STEVEN PINCH
Catchwords:	Criminal law Sentence Imprisonment for 12 months for offences related to unlicensed and stolen firearm and ammunition without licence to possess the same Offender with minor record Whether imprisonment the only disposition open
Legislation:	Nil
Case References:	Dinsdale v The Queen (2000) 74 ALJR 1538 Lowndes v The Queen (1999) 195 CLR 665 Bessell v The Queen, unreported; SCt of WA; Library No 980199; 4 March 1998 Denton v Murdock, unreported; SCt of WA; Library No 950572; 26 October 1995 Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995 Lynch v Sharpe (1901) 4 WALR 10 R v Tait (1979) 46 FLR 368 Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MALATESTA -v- PINCH [2001] WASCA 224 CORAM : MILLER J HEARD : 30 JULY 2001 DELIVERED : 30 JULY 2001 FILE NO/S : SJA 1022 of 2001 MATTER : Justices Act 1902

BETWEEN : JASON DAVID MALATESTA

Appellant

AND

BRADLEY STEVEN PINCH

Respondent

Catchwords:

Criminal law - Sentence - Imprisonment for 12 months for offences related to unlicensed and stolen firearm and ammunition without licence to possess the same - Offender with minor record - Whether imprisonment the only disposition open

Legislation:

Nil

Result:

Appeal allowed

(Page 2)

Sentences of finite imprisonment quashed and sentences of suspended imprisonment imposed in lieu thereof

Representation:

Counsel:

Appellant : Mr J L H Formby

Respondent : Ms C L Bathurst

Solicitors:

Appellant : Formbys

Respondent : State Crown Solicitor

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

Dinsdale v The Queen (2000) 74 ALJR 1538
Lowndes v The Queen (1999) 195 CLR 665

Case(s) also cited:

Bessell v The Queen, unreported; SCt of WA; Library No 980199; 4 March 1998
Denton v Murdock, unreported; SCt of WA; Library No 950572; 26 October 1995
Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995
Lynch v Sharpe (1901) 4 WALR 10
R v Tait (1979) 46 FLR 368
Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992

(Page 3)

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Collie with the following four offences:

(a) conveying in a motor vehicle a Ruger make bolt repeater .243 calibre rifle, Serial Number 7398936, reasonably suspected of having been stolen or unlawfully obtained, contrary to the provisions of s 69 of the

Police Act

;

(b) being in possession of a Ruger make bolt repeater .243 calibre rifle, Serial Number 7398936, whilst not being the holder of a…

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 Malatesta v Pinch

Details

AGLC: Malatesta v Pinch [2001] WASCA 224
Case: [2001] WASCA 224
Decision Date: 30 JULY 2001

CaseChat Overview and Summary

The appeal before the court involved Malatesta, who had been sentenced to imprisonment for a term of 12 months by the Magistrates’ Court of Victoria. Malatesta had been found guilty of various offences related to an unlicensed and stolen firearm and ammunition, and the possession of the same without a licence. The appellant had a minor criminal record. The primary issue before the court was whether imprisonment was the only disposition available in the circumstances of this case. The court also needed to consider whether the sentence imposed was appropriate, having regard to the appellant’s criminal history and the nature of the offences.

In delivering the judgment, the court found that while imprisonment was a possible disposition, it was not the only one available. The court noted that the appellant had a minor criminal record and that the offences, while serious, did not involve any violence or threat of violence. The court held that the primary judge had erred in not considering an alternative to imprisonment, such as a suspended sentence. The court also found that the sentence imposed was excessive, given the appellant’s criminal history and the nature of the offences. The court quashed the sentences of imprisonment and substituted sentences of suspended imprisonment in their place.

The court emphasised the importance of considering the circumstances of the offender and the nature of the offence when determining an appropriate sentence. The court found that, in this case, a suspended sentence was a more appropriate disposition, given the appellant’s criminal history and the nature of the offences. The court also noted that the original sentences imposed were excessive, given the circumstances of the case. The court allowed the appeal and quashed the sentences of imprisonment, imposing sentences of suspended imprisonment in their place.

Orders

Orders of the court

Appeal allowed

Sentences of finite imprisonment quashed and sentences of suspended imprisonment imposed in lieu thereof

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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