OSBORNE -v- FULLER [2006] WASC 295

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 295
Published:	20/12/2006
Case No:	SJA:1093/2006	Heard:	18 DECEMBER 2006
Coram:	MILLER J	Delivered:	17/12/06
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal against sentence allowed Sentence set aside Resentenced to 10 months' imprisonment
Category:	D
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Parties:	EMMA ANNE OSBORNE ADRIAN DAVID FULLER
Catchwords:	Criminal law Sentencing Magistrates' Court Assault occasioning bodily harm Young offender with 3yearold child Whether immediate sentence of imprisonment required Whether personal circumstances sufficiently taken into account
Legislation:	Sentence Administration Act 2003 (WA), s 23(3) Sentencing Act 1995 (WA), s 89(2) Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, sch 1
Case References:	Nevermann (1989) 43 A Crim R 347 Shooter v The Queen, unreported; CCA SCt of WA; Library No 970638; 21 November 1997 Dinsdale v The Queen (2000) 202 CLR 321 Etrelezis v The Queen [2001] WASCA 327 Hull v The State of Western Australia [2005] WASCA 194 Johnson v Hayter [2001] WASCA 118 Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74 Long v Mayger [2004] WASCA 41 Lowndes v The Queen (1999) 195 CLR 665 Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 Richardson v Mulvall [2003] WASCA 283 White v Taylor [2001] WASCA 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : OSBORNE -v- FULLER [2006] WASC 295 CORAM : MILLER J HEARD : 18 DECEMBER 2006 DELIVERED : 18 DECEMBER 2006 PUBLISHED : 21 DECEMBER 2006 FILE NO/S : SJA 1093 of 2006 BETWEEN : EMMA ANNE OSBORNE

Appellant

AND

ADRIAN DAVID FULLER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE W G TARR

File No : PE 43577 of 2006

Catchwords:

Criminal law - Sentencing - Magistrates' Court - Assault occasioning bodily harm - Young offender with 3yearold child - Whether immediate sentence of imprisonment required - Whether personal circumstances sufficiently taken into account

(Page 2)

Legislation:

Sentence Administration Act 2003 (WA), s 23(3)

Sentencing Act 1995 (WA), s 89(2)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, sch 1

Result:

Leave to appeal granted

Appeal against sentence allowed
Sentence set aside
Resentenced to 10 months' imprisonment

Category: D

Representation:

Counsel:

Appellant : Mr R D Young

Respondent : Ms K C Cook

Solicitors:

Appellant : Gunning Young

Respondent : State Director of Public Prosecutions

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

Nevermann (1989) 43 A Crim R 347
Shooter v The Queen, unreported; CCA SCt of WA; Library No 970638; 21 November 1997

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Hull v The State of Western Australia [2005] WASCA 194
Johnson v Hayter [2001] WASCA 118

(Page 3)

Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
Long v Mayger [2004] WASCA 41
Lowndes v The…

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 Osborne v Fuller

Details

AGLC: Osborne v Fuller [2006] WASC 295
Case: [2006] WASC 295
Decision Date

CaseChat Overview and Summary

Emma Anne Osborne sought leave to appeal against a sentence imposed by the Magistrates' Court of Western Australia. The appellant was convicted of assault occasioning bodily harm and sentenced to 14 months' imprisonment, with eligibility for parole. The grounds of appeal were that the Magistrate erred in concluding that immediate imprisonment was the only appropriate sentence, given the appellant's plea of guilty, her youth, family responsibilities, and willingness to engage in counselling. The Magistrate had considered the need for personal and general deterrence and had reduced the sentence to 14 months due to the early guilty plea. The Supreme Court held that while the Magistrates' Court was correct to impose an immediate term of imprisonment, the sentence was excessive. The appellant's age, minimal criminal record, and her role as a mother of a 3-year-old child warranted a more substantial discount from the starting point. The court granted leave to appeal, allowed the appeal against sentence, and set aside the original sentence. In its place, the court imposed a sentence of 10 months' imprisonment, effective from the date of the original sentence. The appellant would be eligible for CEO parole after serving five months.

The court's decision highlights the importance of balancing deterrence and individual circumstances when imposing a sentence, particularly in cases involving young offenders with family responsibilities. The court acknowledged the seriousness of the offence but also recognised the need to consider mitigating factors. The final sentence imposed reflects a more balanced approach, taking into account the appellant's personal circumstances while still addressing the need for deterrence.

Orders