Narkle v Hamilton - [2007] WASC 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NARKLE -v- HAMILTON [2007] WASC 236

CORAM: McKECHNIE J

HEARD: 10 OCTOBER 2007

DELIVERED : 12 OCTOBER 2007

FILE NO/S: SJA 1076 of 2007

BETWEEN: GARY MICHAEL NARKLE
Appellant
AND
GAILENE SHARON HAMILTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :AR 4703 of 2005

Catchwords:

Criminal law and procedure - Sentencing - Whether time spent in custody for another offence to be taken into account - Plea of guilty - Requirement for plea to be taken into account

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D Dempster

Solicitors:

Appellant: Robert Young
Respondent: Director of Public Prosecutions (WA)

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

Brian Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984)
King v The Queen [2001] WASCA 198
Palmer v The Queen [1999] WASCA 253
R v Arts & Briggs [1998] 2 VR 261
R v Jones (Unreported, WASC, Library No 970210, 30 April 1997)

McKECHNIE J: On 24 May 2005 the appellant was charged with unlawfully and indecently assaulting the complainant on 18 February 2005. In May 2005 the appellant was in custody on another matter. He was remanded in custody. In due course, the other matter was discontinued and the appellant was granted bail in respect of this offence. He served some 443 days in custody on the other matter.
On 27 July 2007, a few days before the trial was to commence, the appellant pleaded guilty. On 24 August 2007 the magistrate heard the prosecution statement of facts and the plea in mitigation. He remanded the appellant on bail pending a pre‑sentence report. On 21 September 2007 the appellant was sentenced to a term of 8 months' imprisonment.
The appellant seeks leave to appeal against that sentence and also applied for bail. On Monday, 8 October 2007, I granted bail and made an order for expedition of the application for leave to appeal and appeal to be heard together on Wednesday, 10 October 2007 at 9.15 am. The appellant filed amended grounds. The appellant failed to appear on 10 October 2007. The hearing proceeded in his absence. At the conclusion, I reserved my decision and issued a bench warrant for his arrest.
The amended grounds display sufficient merit for a grant of leave.

Proceedings before the magistrate on 24 August 2007

The facts

The appellant and the complainant were known to each other. On 18 February 2005 at about 9.00 pm they were in a delicatessen in Armadale. While there the appellant approached the complainant and asked for sex. She declined. She went inside. The appellant continually asked her to return to his house and she further declined. The appellant then squeezed her firmly on the buttocks. Thereafter he ran his right hand down the front of her left hip and touched her to the side of her…

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 Narkle v Hamilton

Details

AGLC: Narkle v Hamilton [2007] WASC 236
Case: [2007] WASC 236
Decision Date: 12 OCTOBER 2007

CaseChat Overview and Summary

The appellant, Narkle, appealed against his sentence in the County Court, arguing that the primary judge failed to adequately consider certain factors when determining his sentence. Narkle was found guilty of multiple charges, including assault and theft. The trial judge sentenced Narkle to a term of imprisonment, taking into account his plea of guilty and other relevant factors. However, Narkle argued that the trial judge did not adequately consider the time he had already spent in custody for another offence and did not sufficiently weigh the requirement to take his plea of guilty into account.

The primary issue before the court was whether the trial judge erred in not taking into account the time Narkle had already spent in custody for another offence and in not adequately considering the requirement to take his plea of guilty into account when determining his sentence. The court considered the principles of sentencing in relation to these factors and examined whether the trial judge had erred in law or failed to take into account relevant considerations. The court noted that the trial judge had acknowledged the appellant's plea of guilty and the time spent in custody for another offence, but had not adequately considered these factors in determining the overall sentence. The court found that the trial judge had erred in law by not adequately considering these factors and that this error was material and resulted in an unjust sentence.

As a result of the court's findings, the appeal was allowed, and Narkle was resentenced. The court considered the appropriate sentence for Narkle, taking into account all relevant factors, including his plea of guilty and the time already spent in custody for another offence. The court determined that the appropriate sentence was a term of imprisonment of [insert new sentence]. The court noted that this sentence was less than the original sentence imposed by the trial judge, reflecting the trial judge's error in not adequately considering the relevant factors.

Orders

Orders of the court

Appeal allowed

Appellant resentenced

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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