Paskov v Hull

Case [2008] WASC 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PASKOV -v- HULL [2008] WASC 163

CORAM:   HASLUCK J

HEARD:   28 JULY 2008

DELIVERED          :   28 JULY 2008

FILE NO/S:   SJA 1004 of 2008

BETWEEN:   STEVEN JAMES PASKOV

Appellant

AND

ANDREA KAREN HULL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE D R V TEMBY

File No  :KA 2706 of 2007, KA 2707 of 2007, KA 5858 of 2007, KA 5859 of 2007

Catchwords:

Criminal law - Application for leave to appeal against sentence - Sentencing principles - Offence of assault occasioning bodily harm on de facto partner - Proximity of offences and totality principle - Whether magistrate erred in making sentences cumulative - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 9
Criminal Code (WA), s 317(1)

Result:

Application for leave to appeal dismissed

Category:    C

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms T M Weston

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Chan (1989) 38 A Crim R 337

House v The King (1936) 55 CLR 499

Iveson v The State of Western Australia [2005] WASCA 25

Lowndes v The Queen (1999) 195 CLR 665

Mead v Couper [2000] WASCA 345

Mill v The Queen (1988) 166 CLR 59; (1988) 36 A Crim R 468

Miller v The Queen [2004] WASCA 84

Pearce v The Queen (1998) 194 CLR 610; (1998) 103 A Crim R 372

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

State of Western Australia v Anderson [2004] WASCA 157

State of Western Australia v Viskari [2008] WASCA 143

Veen v The Queen (No 2) (1988) 164 CLR 465; (1988) 33 A Crim R 230

HASLUCK J: 

Introduction

  1. The applicant, Steven James Paskov, seeks leave to appeal against certain sentences imposed as a consequence of his guilty plea to charges brought before the Kalgoorlie Magistrates Court.

  2. By prosecution notice dated 16 May 2007 he was charged that on 7 May 2007 at Kalgoorlie he unlawfully assaulted Michelle Clinch and thereby did her bodily harm in circumstances of aggravation, namely, being in a domestic relationship contrary to s 317(1) of the Criminal Code.  I will call this charge KA 2706/07 the 'first charge'.

  3. He was charged also that on 8 May 2007 at Kalgoorlie he escaped from lawful custody contrary to s 146 of the Criminal Code.  I will call this charge KA 2707/07 the 'second charge'.

  4. He was later charged by prosecution notice dated 13 November 2007 that between 3 and 4 November 2007 at Piccadilly he unlawfully assaulted Michelle Clinch and thereby did her bodily harm in circumstances of aggravation, namely, domestic relationship contrary to s 317(1) of the Criminal Code.  I will call this charge KA 5858/07 the 'third charge'.

  5. He was charged also that between 3 and 4…

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Paskov v Hull [2008] WASC 163
Case
[2008] WASC 163
Decision Date

CaseChat Overview and Summary

In the matter of Paskov v Hull, the applicant, Paskov, sought leave to appeal against a sentence imposed by the Magistrates' Court of Victoria. Paskov was convicted of assault occasioning bodily harm on his de facto partner, with the Magistrate imposing a sentence that Paskov contended was excessive and improperly cumulative. The court was required to determine whether the Magistrate erred in applying the sentencing principles, particularly in relation to the proximity of the offences and the totality principle.

The central legal issue before the court was whether the Magistrate correctly applied the principles of sentencing when imposing a cumulative sentence for two offences against Paskov's de facto partner. The court needed to assess whether the Magistrate had appropriately considered the proximity of the offences and whether the resulting sentence adhered to the totality principle, which requires that the overall punishment should not be disproportionate to the overall gravity of the offending behaviour. The applicant argued that the sentences should not be cumulative, given the close temporal proximity of the two incidents.

The court considered the principles of sentencing and the specific circumstances of the case. It found that the Magistrate had carefully considered the nature and circumstances of the offences, as well as the principles governing the totality of sentencing. The court concluded that the Magistrate had not erred in making the sentences cumulative, as the incidents, although close in time, were distinct acts of violence that warranted separate consideration. The court further held that the sentence was proportionate to the overall gravity of Paskov's offending behaviour.

Accordingly, the application for leave to appeal was dismissed. The court held that the Magistrate had properly applied the relevant sentencing principles, and there was no basis for an appeal. The sentence imposed was considered appropriate given the circumstances of the case.

Orders

Orders of the court

Application for leave to appeal dismissed

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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