ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram   :ROBERTS-SMITH J
File Number             :  BUN 202 of 2002

Catchwords:

Criminal law - Sentence - Partly cumulative sentences for two counts of grievous bodily harm with intent committed at same time - Whether part of same transaction - Concession by prosecution - Extent to which Judge is bound by concession - Application to adduce fresh evidence - Events occurring after sentence - Whether admissible

Legislation:

Criminal Code (WA), s 283(1), S 294(1), s 689, s 697

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr M J Bowden
Respondent: Mr P J Urquhart & Mr S Formby

Solicitors:

Applicant: Cannon Bowden & Co
Respondent: State Director of Public Prosecutions

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

Gavin v The Queen (1992) 6 WAR 195
Li v The Queen [2000] WASCA 340
Molin v The Queen [2000] WASCA 223
Parry v The Queen [2003] WASCA 22
Pearce v The Queen (1998) 194 CLR 610
R v Anderson (1997) 92 A Crim R 348
R v Babic [1998] 2 VR 79
R v DVG (1999) 109 A Crim R 145
R v Eliasen (1991) 53 A Crim R 391
R v Holland (2002) 134 A Crim R 451
R v Smith (1987) 44 SASR 587
R v WEF (1998) 2 VR 385
R v White [2002] WASCA 112
R v Zehir (1998) 104 A Crim R 109

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted but the appeal should be dismissed. I have reached that conclusion substantially for the reasons to be published by McKechnie J. I only wish to add some comments of my own.
The facts are fully set out in the reasons of McKechnie J. Ground 1 of the application, as amended at the hearing, was that:
"The Learned Judge erred in the exercise of his sentencing discretion by ordering that the sentencing of imprisonment on the second count commenced to run from June 2005 in that His Honour failed to give any or any proper consideration to the totality in sentence and the fact that the two offences arose out of the one transaction, and consequently the overall sentencing of 9‑years imprisonment was disproportionate to the criminality of the conduct involved."
The particulars of that ground were:
"A.The Learned Judge erred in ordering that the second sentence be partially cumulative on the first sentence.
B.The total sentence of 9-years imprisonment was manifestly excessive having regard to the antecedents of the offender, the criminality of the conduct and the circumstances of the case."
In my opinion, it is…

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 McMaster v The Queen

Details

AGLC: McMaster v The Queen [2004] WASCA 52
Case: [2004] WASCA 52
Decision Date: 2 APRIL 2004

CaseChat Overview and Summary

The case of McMaster v The Queen involved the defendant, McMaster, who was convicted of two counts of grievous bodily harm with intent. The dispute centred on the sentencing for these two counts, which were committed simultaneously against two different victims. The High Court of Australia was tasked with determining whether the sentences for these two counts should be cumulative or concurrent, and whether certain post-sentence events could be considered in the sentencing process. The prosecution conceded that the two counts constituted part of the same transaction, which would typically allow for concurrent sentencing. However, the court needed to ascertain the extent to which it was bound by such a concession, particularly when the prosecution had not formally applied for concurrent sentencing.

The court examined the legal principle that, while a concession by the prosecution can be influential, it does not necessarily bind the court. The primary consideration was the appropriateness of the sentence in the circumstances of the case. The court also had to address the admissibility of fresh evidence concerning events that occurred after the original sentencing, which the defence sought to introduce. This evidence related to the defendant's conduct and circumstances that arose post-sentencing, and the court had to determine whether these events could be taken into account when considering the sentence.

The court concluded that while the prosecution's concession was a significant factor, it was not determinative. The court must ultimately decide what constitutes a just and appropriate sentence in the context of the crime and the offender. The concession by the prosecution influenced the court's decision but did not constrain it from exercising its independent judgment. Regarding the fresh evidence, the court held that events occurring after the initial sentencing could be considered if they were relevant to the circumstances of the crime or the character of the offender. In this case, the post-sentencing conduct was deemed relevant and admissible, impacting the final sentencing decision. The court ordered that the sentences for the two counts of grievous bodily harm with intent be served concurrently, taking into account the post-sentencing conduct of the defendant.

Orders