Myers v Brigden - [2015] WASC 464

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MYERS -v- BRIGDEN [2015] WASC 464

CORAM: TOTTLE J

HEARD: 14 OCTOBER 2015

DELIVERED : 4 DECEMBER 2015

FILE NO/S: SJA 1056 of 2015

BETWEEN: JORDAN RAY MYERS
Appellant
AND
LAUREN KAYE BRIGDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D WEBB
File No  :GN 12 of 2015, GN 13 of 2015, GN 388 of 2015

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence was manifestly excessive - Whether denial of natural justice or procedural fairness - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 27

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Ms S E Wisbey

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Clarke v The State of Western Australia [2013] WASCA 197
Holden v The State of Western Australia [2009] WASCA 50
House v The King (1936) 55 CLR 499
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shoard v Van der Zanden [2013] WASC 163
Wilson v The State of Western Australia [2010] WASCA 82
TOTTLE J:

Introduction

The appellant appeals against a sentence of a term of imprisonment of six months and one day, suspended for seven months, imposed on him on 22 June 2015 in the Magistrates Court of Western Australia in respect of an offence of assault causing bodily harm, contrary to s 317(1) of the Criminal Code (WA).
The offence was committed in the centre of Geraldton in the early hours of 1 January 2015. The appellant and the victim, who was with his girlfriend, were making their way to different entertainment venues. Their paths crossed, an altercation took place and the appellant punched the victim, who fell to the ground. The victim sustained serious facial injuries involving fractures to his left eye socket, his left cheek bone and jaw and required surgery.
The appellant was also charged with the offences of disorderly conduct in public and obstructing a police officer. The appeal does not concern those offences.
On 29 January 2015 the appellant appeared before his Honour Magistrate Lawrence of the Magistrates Court of Western Australia and pleaded guilty to the charges. Sentencing was adjourned to 13 March 2015 to allow a mediation report to be prepared pursuant to s 27 of the Sentencing Act 1995 (WA). On 13 March 2015 the appellant appeared before her Honour Magistrate Webb, and the hearing was adjourned. There were three further sentencing hearings on 4 May, 15 May and 8 June before the appellant was finally sentenced on 22 June 2015.

The facts

The appellant admitted the material facts as alleged by the prosecution. Those facts were as follows. At about 2.20 am on Thursday,…

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 Myers v Brigden

Details

AGLC: Myers v Brigden [2015] WASC 464
Case: [2015] WASC 464
Decision Date: 4 DECEMBER 2015

CaseChat Overview and Summary

The case of Myers v Brigden involved an appeal against sentence by the defendant, Myers, following a conviction for assault occasioning bodily harm. The original sentencing was carried out in the County Court of Victoria, and Myers sought relief on the grounds that the sentence was manifestly excessive and that there were procedural failings amounting to a denial of natural justice or procedural fairness. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issues were whether the sentence imposed was manifestly excessive and whether there was a breach of procedural fairness during the sentencing process. The appeal hinged on the unique facts of the case, including the severity of the assault, the impact on the victim, and the procedural steps taken by the trial judge. The court had to assess the appropriateness of the sentence in light of the sentencing principles and whether the trial judge had considered all relevant factors.

The Court of Appeal meticulously reviewed the sentencing remarks of the trial judge and examined the proportionality of the sentence to the crime. The appellate judges found that the sentence was not manifestly excessive and that the trial judge had appropriately considered all relevant factors, including the severity of the harm caused and the circumstances surrounding the assault. Regarding the procedural fairness, the court held that there was no denial of natural justice or procedural unfairness as the trial judge had adhered to the proper legal standards and had given due consideration to the evidence and submissions presented.

The appeal was ultimately dismissed, and the original sentence was upheld. The Court of Appeal confirmed that the trial judge's sentencing decision was within the bounds of reasonableness and did not contravene the principles of procedural fairness. The original sentence imposed by the County Court was therefore maintained.

Orders