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O'Brien v Narang

O'Brien v Narang

Case [2018] WASC 376 5 December 2018

Appeal

Aggravated & Exemplary Damages

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   O'BRIEN -v- NARANG [2018] WASC 376
CORAM:   JENKINS J
HEARD:   21 NOVEMBER 2018
DELIVERED          :   21 NOVEMBER 2018
PUBLISHED           :   5 DECEMBER 2018
FILE NO/S:   SJA 1109 of 2018
BETWEEN:   BEN EDWARD JOSEPH O'BRIEN
Appellant
AND
AMARINDER NARANG
First Respondent
DANIEL BORDONI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P G MALONE
File Number             :   FR 10895/2017
FR 10896/2017
FR 5797/2018
FR 5798/2018
FR 6800/2018

Catchwords:

Criminal law - Appeal against sentence - Aggravated assault - Trespass - Breach of protective bail conditions - Failure to state the fact and extent of reduction for pleas of guilty - Whether there was a miscarriage of justice

Criminal law - Appeal against sentence - Magistrate not advised of all time spent on remand in custody - Appropriate to take time in custody on remand into account by backdating sentence

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal granted
Leave to appeal granted on grounds 1 and 2
Ground 1 dismissed
Appeal allowed on ground 2
The sentence imposed is backdated to commence on 23 May 2018

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
First Respondent	:	Ms N Eagling
Second Respondent	:	Ms N Eagling

Solicitors:

Appellant	:	Legal Aid of Western Australia
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia

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

Bennier v Millar [2016] WASC 393
Bropho v Hall [2015] WASC 50
Butler v The State of Western Australia [2012] WASCA 249
Corrigan v Kirkman [2011] WASC 254
Edgill v Maguire [2013] WASC 472
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hamlett v Whitney [2013] WASC 100
Horner v Hunt [2013] WASC 241
Inglis v Pinch [2016] WASC 30
Leighton v Nelson [2016] WASC 354
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67; (2011) 255 FLR 80
Nguyen v The Queen [2016] HCA 17
Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81
Roberts v The State of Western Australia [2014] WASCA 239
Salkilld v The State of Western Australia [2017] WASCA 168
Sikora v Gibson [2018] WASC 271
The State of Western Australia v Cheeseman [2011] WASCA 15
Thom v Davies [2018] WASC 324
Western v Cartmell [2015] WASC 87
Weston v Nicolao [2018] WASC 316

JENKINS J:

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Fremantle on 6 July 2018. The appeal is against the sentences imposed for two counts of assault in circumstances of aggravation, two counts of breach of protective bail conditions and one count of trespass.

Grounds of appeal

The appellant relied on two grounds of appeal:
1.The learned sentencing magistrate erred in law in failing to discount the sentences of imprisonment imposed…

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 O'Brien v Narang

Details

AGLC: O'Brien v Narang [2018] WASC 376
Case: [2018] WASC 376
Decision Date: 5 DECEMBER 2018

CaseChat Overview and Summary

O'Brien v Narang involved the appellant, Narang, who appealed against his conviction and sentence for aggravated assault and trespass. Narang was initially convicted by a magistrate and subsequently sentenced to imprisonment. The grounds of appeal focused on the magistrate's failure to adequately consider the principles of mitigation and to backdate the sentence to account for the time Narang had already spent in custody on remand.

The court had to determine whether the magistrate's failure to state the fact and extent of the reduction for pleas of guilty resulted in a miscarriage of justice. Additionally, the court considered whether the magistrate should have been advised of all the time spent on remand in custody and if it was appropriate to take that time into account by backdating the sentence.

The court found that the magistrate did not adequately address the principles of mitigation, including the time Narang had already spent on remand. The court held that the magistrate's failure to state the fact and extent of the reduction for pleas of guilty was a significant error, which warranted a new sentencing hearing. Furthermore, the court concluded that it was appropriate to take the time in custody on remand into account by backdating the sentence, thereby reducing the overall length of the imprisonment term. Consequently, the appeal was allowed, and the matter was remitted for a new sentencing hearing.

The court ordered that the original conviction be quashed and that a new sentencing hearing be conducted, with appropriate consideration given to the time spent on remand in custody.

Orders