Otway v The State of Western Australia

Case [2008] WASCA 165

OTWAY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 165



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASCA 165
THE COURT OF APPEAL (WA)
Case No:CACR:6/20088 AUGUST 2008
Coram:STEYTLER P
WHEELER JA
MILLER JA		18/08/08
10Judgment Part:1 of 1
Result: Appeal allowed on ground 2
Appellant resentenced
B
PDF Version
Parties:BRENT ROBERT OTWAY
THE STATE OF WESTERN AUSTRALIA

Catchwords:
Criminal law
Appeal
Sentencing
Totality
Time spent in custody
Turns on own facts

Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Sentencing Act 1995 (WA), s 87

Case References:
House v The King [1936] HCA 40; (1936) 55 CLR 499
Howorth v The State of Western Australia [2007] WASCA 78
Little v The Queen [2001] WASCA 87
Narkle v Hamilton [2008] WASCA 31
Nguyen v The State of Western Australia [2007] WASCA 114
R v Pallister [2002] WASCA 68(S); (2002) 131 A Crim R 460
Vlek v The Queen (Unreported, WASC, Library No 990153, 29 March 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : OTWAY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 165 CORAM : STEYTLER P
    WHEELER JA
    MILLER JA
HEARD : 8 AUGUST 2008 DELIVERED : 18 AUGUST 2008 FILE NO/S : CACR 6 of 2008 BETWEEN : BRENT ROBERT OTWAY
    Appellant

    AND

    THE STATE OF WESTERN AUSTRALIA
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 175 of 2006


Catchwords:

Criminal law - Appeal - Sentencing - Totality - Time spent in custody - Turns on own facts


(Page 2)



Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)


Sentencing Act 1995 (WA), s 87

Result:

Appeal allowed on ground 2


Appellant resentenced

Category: B


Representation:

Counsel:


    Appellant : Mr S B Watters
    Respondent : Mr R E Cock QC

Solicitors:

    Appellant : Thames Legal
    Respondent : Director of Public Prosecutions (WA)



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

House v The King [1936] HCA 40; (1936) 55 CLR 499
Howorth v The State of Western Australia [2007] WASCA 78
Little v The Queen [2001] WASCA 87
Narkle v Hamilton [2008] WASCA 31
Nguyen v The State of Western Australia [2007] WASCA 114
R v Pallister [2002] WASCA 68(S); (2002) 131 A Crim R 460
Vlek v The Queen (Unreported, WASC, Library No 990153, 29 March 1999)


(Page 3)

1 STEYTLER P: I agree with Wheeler JA.

    WHEELER JA:


The appeal

2 On 3 December 2007, the appellant was convicted on his own pleas of guilty of four counts of aggravated burglary, one count of aggravated armed robbery, one count of stealing and one count of stealing a motor vehicle. He was sentenced to an aggregate term of 5 years 6 months' imprisonment, backdated to commence on 17 December 2006.

3 On 17 March 2008, the appellant was granted leave to appeal on two grounds. The first ground is that…

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Otway v The State of Western Australia [2008] WASCA 165
Case
[2008] WASCA 165
Decision Date

CaseChat Overview and Summary

The appellant, Otway, appealed his sentence following a conviction for drug trafficking. The dispute was centred on the sentence imposed by the court, which the appellant argued was excessive. The matter was heard in the Court of Appeal of Western Australia. The appellant contended that the sentencing judge had failed to adequately consider the time he had spent in custody prior to his sentencing, which he argued should have been taken into account when determining the appropriate punishment. Additionally, the appellant argued that the overall sentence imposed was disproportionate, and that the judge had not properly balanced the principles of sentencing in accordance with the totality principle.

The legal issues before the court were whether the sentencing judge had erred in failing to give appropriate weight to the time the appellant had spent in custody and whether the sentence imposed was excessive. The court considered the principles of sentencing, including the need for punishment, deterrence, rehabilitation, and the proportionality of the sentence. The court also considered the principle of totality, which requires that the cumulative effect of multiple sentences be taken into account, and the need to avoid double counting of time spent in custody. The court found that the sentencing judge had not properly applied the principle of totality and had not given appropriate weight to the time the appellant had spent in custody. The court also found that the sentence imposed was excessive, and that the judge had not properly balanced the principles of sentencing.

The court held that the appeal should be allowed on the ground that the sentence imposed was excessive and that the sentencing judge had not properly applied the principle of totality. The court found that the appellant should be resentenced, taking into account the time he had spent in custody and the principles of sentencing. The court allowed the appeal and ordered that the appellant be resentenced. The final orders of the court were that the appeal be allowed on ground 2 and that the appellant be resentenced.

Orders

Orders of the court

Appeal allowed on ground 2

Appellant resentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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