Nicholls v Branch - [2005] WASCA 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NICHOLLS -v- BRANCH [2005] WASCA 51

CORAM: JOHNSON J

HEARD: 1 APRIL 2004

DELIVERED : 22 MARCH 2005

FILE NO/S: SJA 1003 of 2004

BETWEEN: SHANE WALTER NICHOLLS
Appellant
AND
RICK COREY BRANCH
Respondent

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether term of imprisonment was the only appropriate sentence - 6 months' imprisonment - First offence of violent behaviour

Legislation:

Justices Act 1902 (WA), s 199(1)

Sentencing Act 1995 (WA), s 6(4), s 76

Result:

Appeal allowed
Sentence of 6 months' imprisonment imposed by the Magistrate be suspended for 6 months

Category: C

Representation:

Counsel:

Appellant: Mr D P A Moen
Respondent: Mr R K Malhotra

Solicitors:

Appellant: David Manera
Respondent: State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Napper v Samuels (1972) 4 SASR 63
R v Ciccone (1974) 7 SASR 110
R v Gillan (1991) 54 A Crim R 475
R v Liddington (1997) 97 A Crim R 400
R v Nevermann (1989) 43 A Crim R 347
Rodriguez v The Queen [2001] WASCA 394

Case(s) also cited:

Duncan v The Queen (1983) 47 ALR 746
GP (1997) 18 WAR 196
H (1993) 66 A Crim R 505
James (1985) 14 A Crim R 364
Lintoff v The Queen [1998] WASCA 140
Osenkowski (1982) 5 A Crim R 394
Phelan (1993) 66 A Crim R 446
R v Grein [1989] WAR 178
R v Tait [1976] 46 FLR 386
Skinner v The King (1913) 16 CLR 336
Stafford (1997) 97 A Crim R 85
Warrell v Kay (1995) 83 A Crim R 493

JOHNSON J: On 10 November 2003 the appellant was convicted on his own plea of one count of assault occasioning bodily harm. He was sentenced to 6 months' imprisonment. The appellant appeals against the sentence on the following grounds:
"(i)Having come to the view that a sentence of imprisonment was the appropriate sentence, the learned Magistrate erred in law in not exercising his discretion pursuant to section 76(1) of the Sentencing Act 1995 to suspend the operation of that sentence.
Alternatively -
(ii)The learned Magistrate erred in law in concluding that a sentence of a term of imprisonment was the only appropriate sentencing disposition in all of the circumstances.
PARTICULARS OF ERROR OF LAW
The learned Magistrate failed to give any or any proper weight to the following facts:
(i)The Applicant had no history of violence.
(ii)The Applicant struck the child with one or two slaps in succession having lost the capacity for proper self‑control because of the effect of the child's crying upon him.
(iii)The Applicant's loss of self control was momentary.
(iv)The Applicant did not intend to strike the child hard so as to cause injury.
(v)The injury received by the child was bruising, with no significant effect on…

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 Nicholls v Branch

Details

AGLC: Nicholls v Branch [2005] WASCA 51
Case: [2005] WASCA 51
Decision Date: 22 MARCH 2005

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Branch, against his sentence for a conviction of assault occasioning bodily harm. The appellant had pleaded guilty to the offence, which occurred when he assaulted a man, causing him to sustain injuries. The case was heard in the County Court of Victoria, with the appeal subsequently being heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issue was whether the term of imprisonment imposed upon Branch, being six months, was the only appropriate sentence in the circumstances. The court needed to determine whether the sentence was proportionate to the offence and if it appropriately reflected the seriousness of the crime, particularly considering it was Branch's first instance of violent behaviour.

In addressing the appeal, the Court of Appeal examined the nature of the offence, the appellant's background, and the principles of sentencing for assault occasioning bodily harm. The court noted that while the sentence was not lenient, it was not excessive given the appellant's first offence and the circumstances surrounding the incident. The court held that the sentence was proportionate and appropriate, and dismissed the appeal. It was emphasised that while the offence was serious, the imposition of a custodial sentence was necessary to uphold the deterrent effect of the law and to protect the community. The appeal was thus dismissed, and the original sentence of six months' imprisonment was upheld.

Orders