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Medanovic v Barrett

Medanovic v Barrett

Case [2016] WASC 237 4 August 2016

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MEDANOVIC -v- BARRETT [2016] WASC 237

CORAM: TOTTLE J

HEARD: 30 JUNE 2016

DELIVERED : 4 AUGUST 2016

FILE NO/S: SJA 1027 of 2016

BETWEEN: ANEL MEDANOVIC
Appellant
AND
LUKE MALCOLM BARRETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S HEATH
File No  :PE 2842 of 2016

Catchwords:

Criminal law - Appeal against sentence - Whether sentence imposed in Magistrates Court was manifestly excessive - Common assault - Where appellant used chair as a weapon - Where the complainant suffered no physical injury - Where appellant joined attack on complainant by a group of his friends - Where the assault took place on a licensed premises - Whether immediate term of imprisonment is justified by seriousness of the offence or required for safety of community - Review of authority on common assault and assault occasioning bodily harm discloses that a term of immediate imprisonment may be an appropriate sentencing disposition for a common assault - Where appellant's youth and good antecedents are factors which favour a non-custodial sentence - Appeal allowed - Sentence set aside

Legislation:

Sentencing Act 1995 (WA) s 6
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA) s 313(1)(b)

Result:

Leave to appeal granted
Chief Magistrate's sentence set aside

Category: B

Representation:

Counsel:

Appellant: Mr P D Yovich SC
Respondent: Mr N S Barron

Solicitors:

Appellant: Frichot & Frichot
Respondent: State Solicitor for Western Australia

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

Ali v The State of Western Australia [2013] WASCA 55
Bropho v Hall [2015] WASC 50
Eric v Bull [2014] WASC 342
Esh v Cooper [2009] WASC 122
Evans v Richards [2015] WASC 53
Garlett v Balic [2016] WASC 172
Harrison v Hunter [2012] WASC 166
Holden v The State of Western Australia [2009] WASCA 50
Kilner v The Queen [1999] WASCA 189
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Morgan v Kazandis [2010] WASC 377
Mourish v The State of Western Australia [2006] WASCA 257
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v State of Western Australia [2014] WASCA 238
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Ugle v Wells [1999] WASCA 21
Wiltshire v Mafi [2010] WASCA 111
Wungundin v Barndon [2013] WASC 28
TOTTLE J:

Introduction

The appellant applies for leave to appeal against a sentence of imprisonment of eight months in respect of an offence of common assault committed on 26 April 2015.
The appellant pleaded guilty and the sentence was imposed by the Chief Magistrate on 13 April 2016. The appellant was released on bail on 22 April 2016 pending the hearing of this application.
The question raised by the application is whether the sentence of immediate imprisonment of eight months was manifestly excessive.
The appellant was 18 and 1/2 years old at the time of the offence.

The facts

The facts…

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 Medanovic v Barrett

Details

AGLC: Medanovic v Barrett [2016] WASC 237
Case: [2016] WASC 237
Decision Date: 4 AUGUST 2016

CaseChat Overview and Summary

Medanovic appealed against the sentence imposed by the Magistrates Court, arguing it was manifestly excessive. The case involved a common assault where the appellant used a chair as a weapon against the complainant, although no physical injury resulted. The assault occurred in a licensed premises, where the appellant joined an attack on the complainant by a group of his friends. The legal issue was whether the sentence of immediate imprisonment was justified by the seriousness of the offence or required for the safety of the community.

The court examined the seriousness of the offence and considered the circumstances under which the assault occurred. It noted that using a chair as a weapon could elevate the seriousness of the assault, even in the absence of physical injury. The fact that the assault took place in a public, licensed premises also contributed to the gravity of the situation. However, the court recognised the appellant's youth and good antecedents as factors favouring a non-custodial sentence. Reviewing relevant authorities, the court found that while immediate imprisonment may be appropriate for a common assault in certain circumstances, the appellant's background warranted consideration of an alternative sentence.

Ultimately, the court held that the sentence imposed was manifestly excessive. The seriousness of the offence, coupled with the appellant's background, did not justify the term of immediate imprisonment. The appeal was allowed, and the sentence was set aside. The case underscores the importance of balancing the gravity of the offence with personal circumstances in sentencing for common assault.

Orders