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Pearce v Ogg

Pearce v Ogg

Case [2019] WASC 18 7 February 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PEARCE -v- OGG [2019] WASC 18
CORAM:   FIANNACA J
HEARD:   1 NOVEMBER 2018
DELIVERED          :   7 FEBRUARY 2019
FILE NO/S:   SJA 1082 of 2018
BETWEEN:   GREGORY WAYNE PEARCE
Appellant

AND

AARON OGG
First Respondent

DEREK NICHOLSON
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1082 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J RANDAZZO
File Number             :   PE 27385 of 2017, PE 27386 of 2017, PE 27387 of 2017, PE 30837 of 2017

Catchwords:

Criminal law - Sentencing - 'Crime-spree' - Whether sentences should have been made concurrent - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr A E Monisse
First Respondent	:	Ms M M Yeung
Second Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Not applicable
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Alford v The State of Western Australia [2018] WASCA 186
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Billington v Depetro [2018] WASC 171
Bransby v The Queen [2010] WASCA 165
Clinch v The Queen (1994) 72 A Crim R 301
Dinsdale v The Queen (2000) 202 CLR 321
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
HFM v The State of Western Australia [2012] WASCA 217
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 185 CLR 665
Markarian v The Queen (2005) 228 CLR 257
McCoombe v The State of Western Australia [2016] WASCA 227
Nancarrow v The State of Western Australia [2006] WASCA 238
Nicholls v The State of Western Australia [2019] WASCA 10
O'Bryne v Whitney [2016] WASC 420
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193
Sartori v The State of Western Australia [2014] WASCA 98
Scolaro v Shephard [No 2] [2010] WASC 271

FIANNACA J:

Summary of the appeal and outcome

The appellant seeks leave to appeal against a sentence of imprisonment imposed on him in the Perth Magistrates Court on 18 December 2017. He was sentenced for a number of offences, which were committed on 7 May 2017. One of the offences was reckless driving to escape a police pursuit ('the aggravated reckless driving offence'). For that offence he was sentenced to 7 months' imprisonment, with eligibility for parole. The learned magistrate ordered that the appellant serve that sentence cumulatively upon a term of 3 years and 6 months' imprisonment imposed on him in the District Court on 14 December 2017. That sentence was for an offence of aggravated home burglary ('the District Court offence'), which was also committed on 7 May 2017. 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 Pearce v Ogg

Details

AGLC: Pearce v Ogg [2019] WASC 18
Case: [2019] WASC 18
Decision Date: 7 FEBRUARY 2019

CaseChat Overview and Summary

The case of Pearce v Ogg involved the appellant, who was convicted on multiple counts of robbery, theft, and assault. The appellant's actions were part of a series of crimes that occurred over a short period, which the trial judge described as a crime-spree. The sentences imposed by the trial judge were for various terms of imprisonment, to run consecutively. The appellant appealed against his sentence, arguing that the sentences should have been ordered to run concurrently, rather than consecutively. The appeal was heard by the Supreme Court of Queensland.

The central legal issue in the appeal was whether the trial judge erred in ordering the sentences to run consecutively, rather than concurrently. The appellant's counsel argued that the sentences should have been made concurrent, in line with the totality principle, which is a principle of sentencing that seeks to ensure that the total punishment imposed on the offender is proportionate to the overall gravity of the offending behaviour. The Crown argued that the trial judge was entitled to order the sentences to run consecutively, given the seriousness and frequency of the offending.

The court noted that the principle of totality in sentencing seeks to ensure that the total punishment imposed on the offender is proportionate to the overall gravity of the offending behaviour. The court held that the trial judge was entitled to order the sentences to run consecutively, given the seriousness and frequency of the offending. The court found that the trial judge had given appropriate consideration to the totality principle, and had balanced the need to deter the appellant and others from engaging in similar offending, with the need to ensure that the punishment was proportionate to the overall gravity of the offending behaviour. The court held that the appeal should be dismissed, and that the sentences imposed by the trial judge were appropriate.

The final orders of the court were that the appeal be dismissed, and that the sentences imposed by the trial judge be upheld. The court did not order any variation to the sentences imposed by the trial judge.

Orders