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Neil v Sowden

Neil v Sowden

Case [2017] WASC 220 4 August 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NEIL -v- SOWDEN [2017] WASC 220

CORAM: MCGRATH J

HEARD: 26 JULY 2017

DELIVERED : 4 AUGUST 2017

FILE NO/S: SJA 1039 of 2017

BETWEEN: KRISTIE JEAN NEIL
Appellant
AND
BRETT SOWDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :KH 2879 of 2014

Catchwords:

Criminal law - Sentencing appeal - Unlawful wounding - Glassing - Section 301(1) of the Criminal Code (WA) - Manifestly excessive sentence - Whether the sentence should have been suspended - Implied error - Error of fact - Error of law - Leave to appeal granted - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 6, s 39, s 76

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr B M Murray

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duggan v Coehlo [2009] WASC 372
Holden v The State of Western Australia [2011] WASCA 238
Janerka v Bethell [2002] WASCA 198
Johnson v Hayter [2001] WASCA 118
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nguyen v Lassau [2010] WASC 240
Plant v Harrington [2010] WASC 364
Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scolaro v Shephard [No 2] [2010] WASC 271
Smith v The State of Western Australia [2010] WASCA 176
Walker v Allen [2006] WASC 89
MCGRATH J:

Introduction

The appellant seeks leave to appeal against the sentence imposed by the magistrate in respect to one offence of unlawful wounding contrary to s 301(1) of the Criminal Code (WA). The appellant also seeks leave for an extension of time in which to appeal. The appellant's complaint is that the magistrate imposed an immediate term of imprisonment that was manifestly excessive both in respect to the length of that term and that the term should have been suspended. That is, the sentence of immediate imprisonment was unreasonable or plainly unjust. The appellant also relies upon three grounds pleading express error.
For the following reasons, whilst I have determined that an extension of time to appeal should be granted and leave to appeal should be granted in respect to all grounds, the appeal is dismissed.

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 Neil v Sowden

Details

AGLC: Neil v Sowden [2017] WASC 220
Case: [2017] WASC 220
Decision Date: 4 AUGUST 2017

CaseChat Overview and Summary

Neil appealed against his conviction for unlawfully wounding a person by striking them on the face with a glass bottle. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive and should have been suspended. The court had to consider the principles of sentencing, particularly the concept of manifest excessiveness, and whether any errors were made by the trial judge in determining the sentence.

The court found that the sentence was not manifestly excessive, and therefore, there was no implied error or error of fact or law on the part of the trial judge. The appeal was based on the contention that the sentence should have been suspended, but the court held that the trial judge had properly exercised their discretion in imposing a non-suspended sentence. The court emphasised that the decision to suspend a sentence is a matter of judicial discretion and that the trial judge's decision should not be lightly interfered with on appeal.

Consequently, the court dismissed the appeal and found that the sentence was appropriate and within the range of acceptable punishment for the offence. The appeal was dismissed, and the original sentence remained in place. The court's decision reinforced the principle that sentencing decisions are matters of judicial discretion and that appellate courts should not substitute their judgment for that of the trial judge unless there has been a clear error of law or a manifestly excessive sentence.

Orders