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Malpuss v Giuffre

Malpuss v Giuffre

Case [2020] WASC 303 21 August 2020

Appeal

Breach of Totality Principle

Breach of Parity Principle

Express Errors of Law

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MALPUSS -v- GIUFFRE [2020] WASC 303
CORAM:   MCGRATH J
HEARD:   3 APRIL 2020 & 22 MAY 2020
DELIVERED          :   21 AUGUST 2020
FILE NO/S:   SJA 1154 of 2019
BETWEEN:   BEN JAYDON MALPUSS
Appellant
AND
PAUL GIUFFRE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE MAIO
File Number            :   JO 12073 of 2018, JO 12074 of 2018, JO 12075 of 2018, JO 12076 of 2018

Catchwords:

Criminal law – Appeal against sentence – Appeal against conviction – Common assault – Section 313(1) of the Criminal Code (WA) – Cruelty to animals – Section 19(1) of the Animals Welfare Act 2002 (WA) – Sentence manifestly excessive – Breach of totality principle – Breach of parity principle – Express errors of law

Legislation:

Animal Welfare Act 2002 (WA), s 19(1)
Criminal Code (WA), s 5(1), s 5(8), s 301(1)
Sentencing Act 1995 (WA), s 4, s 6, s 9, s 9AA, s 39(2), s 42(2)

Result:

Appeal against conviction:
Leave to appeal granted
Appeal dismissed

Appeal against sentence:
Leave to appeal granted on grounds 1, 2 and 3
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr M R Gunning
Respondent	:	Ms R C Panetta

Solicitors:

Appellant	:	Gunning Young
Respondent	:	State Solicitor's Office

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

Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Garlett v Balic [2016] WASC 172
Green v The Queen (2011) 244 CLR 462
Harrison v Hunter [2012] WASC 166
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Holding v Parkin [2012] WASC 113
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Medanovic v Barrett [2016] WASC 237
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
O (a Child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)
Petrusic v The State of Western Australia [2020] WASCA 62
R v Beck [1990] 1 Qd R 30
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Taylor v The State of Western Australia [2016] WASCA 210

MCGRATH J:

Mr Malpuss was charged with two counts of common assault contrary to s 313(1)(b) of the Criminal Code (WA),[1] one count of common assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code[2] (the assault charges), and one count of cruelty to an animal contrary to s 19(1) of the Animal Welfare Act 2002 (WA)[3] (the animal cruelty charge). Mr Malpuss pleaded guilty to the assault charges and was convicted of the animal cruelty charge after trial in the Magistrates Court. Mr Malpuss…

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 Malpuss v Giuffre

Details

AGLC: Malpuss v Giuffre [2020] WASC 303
Case: [2020] WASC 303
Decision Date: 21 AUGUST 2020

CaseChat Overview and Summary

In Malpuss v Giuffre, the respondent, Giuffre, appealed against his conviction and sentence for common assault and animal cruelty. The case was heard in the Court of Appeal of Western Australia. The appellant, Malpuss, sought to appeal both the conviction and the sentence imposed on Giuffre for assaulting Malpuss and for causing unnecessary suffering to his dog, contrary to sections 313(1) of the Criminal Code (WA) and 19(1) of the Animals Welfare Act 2002 (WA), respectively.

The court was required to consider whether the sentence imposed by the primary judge was manifestly excessive and whether there was a breach of the totality, parity, and proportionality principles. The court had to determine if there were any errors of law that warranted the intervention of the appellate court. The appellant argued that the sentence was manifestly excessive and that there was a breach of the totality and parity principles.

The court found that the sentence was manifestly excessive and that there was a breach of the totality and parity principles. The court held that the sentence imposed on Giuffre was disproportionate to the offending and did not take into account the totality of the offending. The court also found that there was a breach of the parity principle as the sentence for the animal cruelty offence was significantly higher than the sentence for the assault offence. The court held that there were errors of law in the primary judge's sentencing process that warranted the intervention of the appellate court. The appeal against the conviction was dismissed, but the appeal against the sentence was allowed.

The court ordered a re-sentencing of Giuffre for the common assault and animal cruelty offences. The court directed that the re-sentencing be conducted in accordance with the principles of totality, parity, and proportionality. The court also directed that the re-sentencing take into account the mitigating factors that were identified by the primary judge.

Orders