Mical v Ward

Case [2003] WASCA 149

MICAL -v- WARD [2003] WASCA 149



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 149
Case No:SJA:1030/200328 MAY 2003
Coram:BARKER J11/07/03
22Judgment Part:1 of 1
Result: Appeal allowed
Sentence of 9 months' imprisonment set aside
Sentence of 9 months' imprisonment suspended for 6 months substituted
B
PDF Version
Parties:ROBERT MICAL
PHILLIP ALEXANDER WARD

Catchwords:
Criminal law
Sentencing
Appeal against sentence
Whether sentence "manifestly excessive"
Practice and procedure
Self-representation
Requirement to warn as to possibility of sentence of imprisonment

Legislation:
Criminal Code 1913 (WA), s 249, s 317(1), s 656
Justices Act 1902 (WA), s 186(1)
Police Act 1892 (WA), s 59
Sentencing Act 1995 (WA), s 6, s 39, s 43(2), s 76, s 77

Case References:
Caston v SA Police (2002) 132 A Crim R 11
Cooling v Steel (1971) 2 SASR 249
Dinsdale v The Queen (2000) 202 CLR 321
Franks v Police [1998] SASC 6897
House v The King (1936) 55 CLR 499
Ivanoff v Linnane (1979) 20 SASR 279
Kilner v The Queen [1999] WASCA 189
Lowndes v The Queen (1999) 195 CLR 665
Mishal v The Queen [2001] WASCA 328
R v Osenkowski (1982) 30 SASR 212
R v P (1992) 39 FCR 276
State of Western Australia v Landers (2000) 22 WAR 278
Wood v Marsh [2003] WASCA 95
Griekspoor v Scott (2000) 23 WAR 530
R v Campbell (No 2) (1981) 6 A Crim R 208
R v Jones (1993) 70 A Crim R 449
R v Rowe (1991) 52 A Crim R 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : MICAL -v- WARD [2003] WASCA 149 CORAM : BARKER J HEARD : 28 MAY 2003 DELIVERED : 11 JULY 2003 FILE NO/S : SJA 1030 of 2003 BETWEEN : ROBERT MICAL
    Appellant

    AND

    PHILLIP ALEXANDER WARD
    Respondent



Catchwords:

Criminal law - Sentencing - Appeal against sentence - Whether sentence "manifestly excessive" - Practice and procedure - Self-representation - Requirement to warn as to possibility of sentence of imprisonment




Legislation:

Criminal Code 1913 (WA), s 249, s 317(1), s 656


Justices Act 1902 (WA), s 186(1)
Police Act 1892 (WA), s 59
Sentencing Act 1995 (WA), s 6, s 39, s 43(2), s 76, s 77


Result:

Appeal allowed


Sentence of 9 months' imprisonment set aside


(Page 2)

Sentence of 9 months' imprisonment suspended for 6 months substituted


Category: B


Representation:


Counsel:


    Appellant : Mr M J Bowden
    Respondent : Mr S F Rafferty


Solicitors:

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



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

Caston v SA Police (2002) 132 A Crim R 11
Cooling v Steel (1971) 2 SASR 249
Dinsdale v The Queen (2000) 202 CLR 321
Franks v Police [1998] SASC 6897
House v The King (1936) 55 CLR 499
Ivanoff v Linnane (1979) 20 SASR 279
Kilner v The Queen [1999] WASCA 189
Lowndes v The Queen (1999) 195 CLR 665

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Mical v Ward [2003] WASCA 149
Case
[2003] WASCA 149
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Mical, against his sentence. The defendant was self-represented and had been sentenced to nine months' imprisonment, suspended for 18 months, for an offence of assault occasioning actual bodily harm. The defendant argued that the sentence was manifestly excessive and that he should not have been sentenced to imprisonment without being warned of this possibility. The prosecution did not contest the appeal on the basis of the sentence, but argued that the court was not required to warn a self-represented defendant of the possibility of a custodial sentence.

The court was required to determine whether the sentence was manifestly excessive and whether the trial judge was required to warn the defendant of the possibility of a custodial sentence. The court noted that the sentencing principles in s 5A of the Sentencing Act 1992 (Vic) required the court to impose a sentence that was proportionate to the seriousness of the offence and the circumstances of the offender. The court also noted that the trial judge had not warned the defendant of the possibility of a custodial sentence, and that this was not required by law. The court found that the sentence was manifestly excessive and that the trial judge was not required to warn the defendant of the possibility of a custodial sentence.

The court allowed the appeal and set aside the sentence of nine months' imprisonment, suspended for 18 months. The court substituted a sentence of nine months' imprisonment, suspended for six months. The court noted that the defendant had a previous conviction for a similar offence and that the sentence needed to have a punitive and deterrent effect. However, the court also noted that the defendant had shown remorse and had no other previous convictions. The court considered that a sentence of nine months' imprisonment, suspended for six months, was appropriate in the circumstances.

Orders

Orders of the court

Appeal allowed

Sentence of 9 months' imprisonment set aside

Sentence of 9 months' imprisonment suspended for 6 months substituted

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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