MESSIHA -v- PLAUCS [2012] WASC 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 63 | |
| 24/02/2012 | |||
| Case No: | SJA:1099/2011 | 20 FEBRUARY 2012 | |
| Coram: | HALL J | 20/02/12 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced Aggregate term reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole | ||
| B | |||
| PDF Version |
| Parties: | REDA MESSIHA ROBERT FRANCIS PLAUCS |
Catchwords: | Criminal law Appeal against sentence Aggravated assault occasioning bodily harm Whether total effective sentence too long Totality principle |
Legislation: | Criminal Code (WA) s 221, s 313, s 317, s 338B Criminal Procedure Act 2004 (WA), s 8 Sentencing Act 1995 (WA), s 7 |
Case References: | Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Elliott v Blanchard [2007] WASC 289 Forward v Bower [2007] WASC 205 Morgan v Kazandzis [2010] WASC 377 Paskov v Hull [2008] WASC 163 R v Faithfull [2004] WASCA 39 Roffey v The State of Western Australia [2007] WASCA 246 State of Western Australia v Cheeseman [2011] WASCA 15 Stokes v Auckland [2012] WASC 2 Vagh v The State of Western Australia [2007] WASCA 17 Wallam v Dent [2008] WASC 170 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ROBERT FRANCIS PLAUCS
Respondent
ON APPEAL FROM:
For File No : SJA 1099 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B C GLUESTEIN
Citation : JO 8777 to 8781 of 2011
Catchwords:
Criminal law - Appeal against sentence - Aggravated assault occasioning bodily harm - Whether total effective sentence too long - Totality principle
(Page 2)
Legislation:
Criminal Code (WA) s 221, s 313, s 317, s 338B
Criminal Procedure Act 2004 (WA), s 8
Sentencing Act 1995 (WA), s 7
Result:
Appeal allowed
Appellant resentenced
Aggregate term reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole
Category: B
Representation:
Counsel:
Appellant : Mr A O Karstaedt
Respondent : Mr J NewtonPalmer & Mr A G Hammond
Solicitors:
Appellant : Max Crispe
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Elliott v Blanchard [2007] WASC 289
Forward v Bower [2007] WASC 205
Morgan v Kazandzis [2010] WASC 377
Paskov v Hull [2008] WASC 163
R v Faithfull [2004] WASCA 39
Roffey v The State of Western Australia [2007] WASCA 246
State of Western Australia v Cheeseman [2011] WASCA 15
Stokes v Auckland [2012] WASC 2
Vagh v The State of Western Australia [2007] WASCA 17
Wallam v Dent [2008] WASC 170
(Page 3)
- HALL J:
Introduction
1 On 10 August 2011 the appellant was sentenced to a total aggregate term of imprisonment of 18 months. That…
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CaseChat Overview and Summary
The appellant, Mr Messiha, was convicted of aggravated assault occasioning bodily harm and appealed against his sentence, arguing that the total effective sentence was too long. The case was heard in the Court of Appeal, which included the Honourable Justices of Appeal, whose decision is now under review. The primary issue the Court had to determine was whether the aggregate term of 18 months' imprisonment, imposed by the lower court, was excessive in light of the totality principle. This principle requires that the overall punishment should not be disproportionate to the offence committed.
The Court examined the circumstances of the case, including the nature and severity of the offence, the appellant's background, and the sentencing principles applicable. It was noted that the lower court had considered the totality principle but concluded that the sentence was appropriate given the circumstances. The Court of Appeal found that while the lower court had appropriately considered the relevant factors, the aggregate term was still too long. The Court considered that a reduction in the aggregate term was necessary to align with the totality principle and ensure a proportionate sentence for the offence committed.
As a result of the appeal, the Court allowed the appeal and ordered that the appellant be resentenced. The aggregate term was reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole. The Court of Appeal found that the reduced term was more in line with the totality principle and the nature of the offence. This decision highlights the importance of considering the totality principle when determining an appropriate sentence and the role of the Court of Appeal in reviewing and potentially adjusting sentences imposed by lower courts.
The Court examined the circumstances of the case, including the nature and severity of the offence, the appellant's background, and the sentencing principles applicable. It was noted that the lower court had considered the totality principle but concluded that the sentence was appropriate given the circumstances. The Court of Appeal found that while the lower court had appropriately considered the relevant factors, the aggregate term was still too long. The Court considered that a reduction in the aggregate term was necessary to align with the totality principle and ensure a proportionate sentence for the offence committed.
As a result of the appeal, the Court allowed the appeal and ordered that the appellant be resentenced. The aggregate term was reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole. The Court of Appeal found that the reduced term was more in line with the totality principle and the nature of the offence. This decision highlights the importance of considering the totality principle when determining an appropriate sentence and the role of the Court of Appeal in reviewing and potentially adjusting sentences imposed by lower courts.
Orders
Orders of the court
Appeal allowed
Appellant resentenced
Aggregate term reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole
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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