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Poletti v Adams

Poletti v Adams

Case [2005] WASC 66 20 April 2005

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POLETTI -v- ADAMS [2005] WASC 66

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 66
Case No:	SJA:1138/2004	Heard:	19 & 20 APRIL 2005
Coram:	BLAXELL J	Delivered:	20/04/05
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed and suspended term of imprisonment substituted
Category:	B
PDF Version

Parties:	TYLER JOHN POLETTI MARK JEFFREY ADAMS
Catchwords:	Criminal law Appeal from sentence of Magistrate Assault occasioning bodily harm Immediate term of imprisonment for 18yearold first offender Whether sentence manifestly excessive Whether a failure to give sufficient weight to mitigating factors Whether a failure to properly consider a suspended sentence Criminal law Appeal from sentence of Magistrate Summary conviction penalty Extent to which summary conviction penalty limits the calculation of the appropriate sentence
Legislation:	Criminal Code (WA), s 5(9), s 317 Justices Act 1902 (WA), s 191 Sentencing Act 1995 (WA), s 6
Case References:	Dinsdale v The Queen (1999) 202 CLR 321 House v The King (1936) 55 CLR 499 Smejlis v Matthews [2004] WASC 158 Bensegger v The Queen [1979] WAR 65 Cameron v The Queen (2002) 209 CLR 339 Chua v The Queen [2001] WASCA 353 Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 R v Houlton (2000) 115 A Crim R 104 R v Liddington (1997) 18 WAR 394 R v Minchington (1998) 104 A Crim R 502

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : POLETTI -v- ADAMS [2005] WASC 66 CORAM : BLAXELL J HEARD : 19 & 20 APRIL 2005 DELIVERED : 20 APRIL 2005 FILE NO/S : SJA 1138 of 2004 BETWEEN : TYLER JOHN POLETTI

Appellant

AND

MARK JEFFREY ADAMS

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : DR KING SM

File No : GE 2671 of 2004

Catchwords:

Criminal law - Appeal from sentence of Magistrate - Assault occasioning bodily harm - Immediate term of imprisonment for 18yearold first offender - Whether sentence manifestly excessive - Whether a failure to give sufficient weight to mitigating factors - Whether a failure to properly consider a suspended sentence

Criminal law - Appeal from sentence of Magistrate - Summary conviction penalty - Extent to which summary conviction penalty limits the calculation of the appropriate sentence

(Page 2)

Legislation:

Criminal Code (WA), s 5(9), s 317

Justices Act 1902 (WA), s 191
Sentencing Act 1995 (WA), s 6

Result:

Appeal allowed and suspended term of imprisonment substituted

Category: B

Representation:

Counsel:

Appellant : Mr L M Levy

Respondent : Mr M A Perrella

Solicitors:

Appellant : Laurie Levy

Respondent : State Director of Public Prosecutions

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

Dinsdale v The Queen (1999) 202 CLR 321
House v The King (1936) 55 CLR 499
Smejlis v Matthews [2004] WASC 158

Case(s) also cited:

Bensegger v The Queen [1979] WAR 65
Cameron v The Queen (2002) 209 CLR 339
Chua v The Queen [2001] WASCA 353
Little v…

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 Poletti v Adams

Details

AGLC: Poletti v Adams [2005] WASC 66
Case: [2005] WASC 66
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Tyler John Poletti appealed against a 12-month imprisonment sentence imposed by the Magistrate in the Geraldton Court of Petty Sessions for an assault occasioning bodily harm. Poletti, an 18-year-old first-time offender, contended that the sentence was manifestly excessive and that the Magistrate failed to give sufficient weight to mitigating factors and did not properly consider a suspended sentence. The appeal hinged on whether the Magistrate erred in the exercise of his discretion by imposing a manifestly excessive sentence and by not considering mitigating factors and a suspended sentence. The court held that while the Magistrate did not err in imposing a sentence below the cap set by the statutory conviction penalty, he did not adequately weigh all relevant mitigating factors against the objective features of the offence. Consequently, the appeal was allowed, and the 12-month imprisonment term was substituted with a 12-month suspended sentence for 12 months.

Orders