Osborne v Fuller

Case [2006] WASC 295


OSBORNE -v- FULLER [2006] WASC 295



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASC 295
20/12/2006
Case No:SJA:1093/200618 DECEMBER 2006
Coram:MILLER J17/12/06
8Judgment Part:1 of 1
Result: Leave to appeal granted
Appeal against sentence allowed
Sentence set aside
Resentenced to 10 months' imprisonment
D
PDF Version
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…

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Osborne v Fuller [2006] WASC 295
Case
[2006] WASC 295
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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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