MURRAY -v- FOSTER [2014] WASC 119

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 119
Published:	03/04/2014
Case No:	SJA:1013/2014	Heard:	10 & 14 MARCH 2014
Coram:	CORBOY J	Delivered:	21/03/14
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant re-sentenced
Category:	B
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Parties:	PETER MURRAY JAMES FOSTER
Catchwords:	Criminal appeal Appeal against sentence Whether sentence manifestly excessive Turns on its own facts
Legislation:	Criminal Code (WA), s 491(1) Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
Case References:	Hodder v Police Department of Western Australia [2011] WASC 142 Hodder v Skamp [No 2] [2009] WASC 53 Kahn v The Queen [2012] NSWCCA 132 Melvaine v Police [2012] SASC 32; (2012) 112 SASR 452 RLG v Donnelly [2012] WASC 230 Saad v Minister for Foreign Affairs [2007] AATA 1675 The Queen v Jain [2004] VSCA 30 Thompson v Minister for Foreign Affairs and Trade [2007] AATA 1244; [2007] 45 AAR 149 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : MURRAY -v- FOSTER [2014] WASC 119 CORAM : CORBOY J HEARD : 10 & 14 MARCH 2014 DELIVERED : 21 MARCH 2014 PUBLISHED : 3 APRIL 2014 FILE NO/S : SJA 1013 of 2014 BETWEEN : PETER MURRAY

Appellant

AND

JAMES FOSTER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : CHIEF MAGISTRATE S A HEATH

File No : PE 61400 of 2013, PE 61401 of 2013

Catchwords:

Criminal appeal - Appeal against sentence - Whether sentence manifestly excessive - Turns on its own facts

Legislation:

Criminal Code (WA), s 491(1)

Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)

Result:

Appeal allowed

Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant : Mr A Robson

Respondent : Ms A Longden & Mr E A McClintock

Solicitors:

Appellant : Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

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

Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Skamp [No 2] [2009] WASC 53
Kahn v The Queen [2012] NSWCCA 132
Melvaine v Police [2012] SASC 32; (2012) 112 SASR 452
RLG v Donnelly [2012] WASC 230
Saad v Minister for Foreign Affairs [2007] AATA 1675
The Queen v Jain [2004] VSCA 30
Thompson v Minister for Foreign Affairs and Trade [2007] AATA 1244; [2007] 45 AAR 149
Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J

(These reasons were delivered orally on 21 March 2014 and have been edited from the transcript.)

1 The appellant is a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (Community Protection Act).

2 The appellant was convicted of sex offences in August 2001 and September 2002. The appellant was charged with two offences by a prosecution notice dated 3 December 2013. First, that he possessed, between 17 October 2012 and 25 October 2013, identification material with the intention that…

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 Murray v Foster

Details

AGLC: Murray v Foster [2014] WASC 119
Case: [2014] WASC 119
Decision Date: 3 APRIL 2014

CaseChat Overview and Summary

The case of Murray v Foster involved the appellant, Murray, appealing against the sentence handed down by the lower court. The dispute centred around the severity of the sentence imposed on Murray, with the appellant arguing that the punishment was excessively harsh. The appeal was heard in the court of appeal, which was tasked with determining whether the original sentence was indeed manifestly excessive.

The legal issues that the court had to decide included the appropriate criteria for assessing the severity of a sentence and whether the original sentence was indeed manifestly excessive when considered in the context of the specific facts of the case. The court was required to balance the principles of punishment, deterrence, and rehabilitation against the need to ensure that the sentence was proportionate to the crime committed.

In delivering its judgment, the court of appeal closely examined the circumstances of the case and the sentence imposed by the lower court. The court recognised that each case must be assessed on its own facts, and that the determination of whether a sentence is manifestly excessive must be made with reference to the specific circumstances of the offence and the offender. The court found that the original sentence was indeed excessively harsh when viewed in the context of the particular facts of this case. Consequently, the appeal was allowed, and the appellant was re-sentenced by the court of appeal.

Orders

Orders of the court

Appeal allowed

Appellant re-sentenced

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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