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Powell v Tickner

Powell v Tickner

Case [2010] WASCA 224 23 November 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: POWELL -v- TICKNER [2010] WASCA 224

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 8 SEPTEMBER 2010

DELIVERED : 23 NOVEMBER 2010

FILE NO/S: CACR 102 of 2010

BETWEEN: LENA MARGARET POWELL
Appellant
AND
MARK HANS TICKNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :TICKNER -v- POWELL [2010] WASC 142
File No  :SJA 1034 of 2010

Catchwords:

Criminal law - Sentencing - Unlawful wounding by 'glassing' - The relevance of 'community expectations' - The prevalence of 'glassing' attacks - Sentencing standards - Greater weight to be given to general deterrence - Whether term of imprisonment to be served immediately was the only appropriate sentencing option

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 16(2), s 41(3)(c)

Result:

Appeal allowed
Respondent re-sentenced

Category: A

Representation:

Counsel:

Appellant: Mr J McGrath
Respondent: Mr A J Robson

Solicitors:

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

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

Curtis v Sidik [1999] NTSC 135; (1999) 119 A Crim R 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v Duong [2006] VSCA 78
Director of Public Prosecutions v Watson [2004] TASSC 54
Duggan v Coelho [2009] WASC 372
Etrelezis v The Queen [2001] WASCA 327
Janerka v Bethell [2002] WASCA 198
Long v Mayger [2004] WASCA 41
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Nguyen v Lassau [2010] WASC 240
Pedersen v The State of Western Australia [2010] WASCA 175
Poyner v The Queen (1986) 66 ALR 264
R v Clarke [1996] 2 VR 520
R v Dowie [1989] Tas R 167
R v Downie [1998] 2 VR 517
R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209
R v Liddington (1997) 18 WAR 394
R v Nemer [2003] SASC 375
R v Peterson [1984] WAR 329
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Scolaro v Shephard [No 2] [2010] WASC 271
Stark v The State of Western Australia [2007] WASCA 44
The State of Western Australia v Johnson [2009] WASCA 224
Tickner v Powell [2010] WASC 142
Walker v Allen [2006] WASC 89
WCB v The Queen [2010] VSCA 230
Wiltshire v Mafi [2010] WASCA 111
Winch v The Queen [2010] VSCA 141
Yardley v Betts (1979) 22 SASR 108

Table of Contents

McLure P's reasons ………………………………………………………………...……5
Buss JA's reasons……………………………………………………………………...…..7
The facts and circumstances of the offending
The magistrate's decision and reasoning
Murray J's decision and reasoning
The State's grounds of appeal to this court
Manifest inadequacy
Inadequate weight
The suspension of a term of imprisonment
The present appeal: the maximum available penalty
The present appeal: the standards of sentencing customarily observed
Sentencing and the prevalence of an offence
Sentencing and community expectations
The prevalence of 'glassing' in Western Australia
The merits of ground 1
The merits…

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 Powell v Tickner

Details

AGLC: Powell v Tickner [2010] WASCA 224
Case: [2010] WASCA 224
Decision Date: 23 NOVEMBER 2010

CaseChat Overview and Summary

In the case of Powell v Tickner, the defendant, Powell, was convicted of unlawfully wounding Tickner by using a glass bottle in an attack. The dispute was primarily focused on the appropriate sentence to be imposed on Powell, given the nature of the crime and the broader societal context of such attacks. The case was heard and determined by the Victorian Supreme Court.

The court was required to consider several legal issues, including the relevance of community expectations in sentencing, the prevalence of 'glassing' attacks, and the balance between general and specific deterrence in such cases. The court had to determine whether a term of imprisonment should be served immediately or if there were other viable sentencing options that could adequately address the crime while also considering Powell's personal circumstances.

The court emphasised the need for general deterrence in cases involving 'glassing' attacks, which are increasingly common and carry significant risks of severe injury. It was held that the term of imprisonment should be given greater weight to ensure that potential offenders understand the severe consequences of such actions. The court concluded that, given the seriousness of the offence and its impact on society, a term of imprisonment to be served immediately was the most appropriate sentencing option. The court found that this approach would most effectively uphold community standards and deter future attacks.

The final orders of the court mandated that Powell be imprisoned for a specified term, to be served immediately, reflecting the gravity of the crime and the need for strong general deterrence. The decision underscored the court's commitment to addressing the issue of 'glassing' attacks through robust sentencing that aligns with community expectations and the principles of justice.

Orders