DANIEL GRAHAM WHITNEY DAVID WILLIAM CLIFFORD HORNE PIERIS CHRISTOS PIERI RAYMOND PAUL WRIGHT CIARAN CLEARY JAMES ALEXANDER BUTLER SEAN TYSON ROMAN Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P HEANEY
File No :PE 101005 of 2014, PE 101006 of 2014, FR 10031 of 2014, FR 10032 of 2014, PE 23484 of 2015, PE 23485 of 2015, PE 23486 of 2015, PE 23487 of 2015, PE 27067 of 2015, PE 27068 of 2015, PE 59157 of 2015, PE 59158 of 2015, PE 115334 of 2014, MH 4375 of 2015
Catchwords:
Criminal law - Appeal against sentence - Whether total aggregate sentence breached totality principle - 'Single sentencing exercise approach' - No substantial miscarriage of justice
[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'Byrne v Whitney
Sign in free to access the full text
Details
AGLC
O'Byrne v Whitney [2016] WASC 420
Case
[2016] WASC 420
Decision Date
CaseChat Overview and Summary
The appeal by the respondent, Whitney, against the total aggregate sentence imposed upon him by the County Court was heard in the Supreme Court. Whitney had been found guilty of five charges of possession of dangerous drugs with intent to supply and was sentenced to a total of five years imprisonment, with a non-parole period of two years and eight months. Whitney argued that the total aggregate sentence imposed on him breached the totality principle, which prohibits a sentence that is grossly disproportionate to the gravity of the offending. The Crown argued that the sentence was appropriate and did not breach the totality principle.
The court examined the 'single sentencing exercise approach', which requires the totality of the sentence to be considered as a whole, rather than examining each individual sentence in isolation. The court held that the total aggregate sentence imposed on Whitney did not breach the totality principle, as it was not grossly disproportionate to the gravity of his offending. The court found that the sentence reflected the seriousness of the offending, the need for general deterrence, and the need to protect the community. The court held that there was no substantial miscarriage of justice in the sentence imposed on Whitney.
Whitney's appeal against sentence was dismissed. The court did not make any orders regarding costs.