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Ramsay v Trovarello

Ramsay v Trovarello

Case [2009] WASC 146 29 May 2009

Appeal

Sentencing

Breach of Suspended Imprisonment Order

Miscarriage of Justice

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RAMSAY -v- TROVARELLO [2009] WASC 146

CORAM: HASLUCK J

HEARD: 20 MAY 2009

DELIVERED : 29 MAY 2009

FILE NO/S: SJA 1006 of 2009

BETWEEN: DAVID PHILIP RAMSAY
Appellant
AND
DEAN TROVARELLO
First Respondent
PAUL MICHAEL O'CONNOR
Second Respondent
CAITLIN BROOK LIEBMANN
Third Respondent

FILE NO/S :SJA 1007 of 2009
SJA 1008 of 2009

BETWEEN :DAVID PHILIP RAMSAY
Appellant
AND
CAITLIN BROOK LIEBMANN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S A HEATH
File No  :JO 6015 of 2008, JO 6016 of 2008, JO 6017 of 2008, JO 6018 of 2008, JO 6019 of 2008, JO 6020 of 2008, JO 6021 of 2008, JO 6023 of 2008, JO 6024 of 2008, JO 6025 of 2008, JO 6026 of 2008, JO 6027 of 2008, JO 6028 of 2008, JO 6029 of 2008, JO 6030 of 2008, JO 6031 of 2008, JO 6032 of 2008, JO 6033 of 2008, PE 66994 of 2008, BU 209 of 2006
For File No              :  SJA 1007 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 209 of 2006
For File No              :  SJA 1008 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 209 of 2006

Catchwords:

Criminal law - Appeal against sentence - Offence of assault occasioning bodily harm - Appeal from Magistrates Court - Whether magistrate erred by purporting to impose a suspended imprisonment order and an intensive supervision order for one offence - Effect of offender not being present in court on the hearing of an application for correction - Whether circumstances sufficiently exceptional to justify an extension of time to appeal - Whether sufficient weight given to changed circumstances upon sentencing for a breach of suspended imprisonment order - Appropriate sentence for multiple fraud offences - Status of indicated sentence from Drug Court after sentencing for fraud offences referred back to Magistrates Court - Finding of miscarriage of justice in respect to totality of final sentence - Sentences quashed and offender resentenced

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)
Criminal Code (WA), s 317(1), s 409(1)(d)
Sentencing Act 1995 (WA), s 6, s 11, s 37, s 39, s 76, s 80

Result:

Extension of time to appeal allowed
Appeals allowed
Sentences quashed and offender resentenced

Category: B

Representation:

SJA 1006 of 2009

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Mr J Newton-Palmer
Second Respondent      :     Mr J Newton-Palmer
Third Respondent          :     Mr J Newton-Palmer

Solicitors:

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

SJA 1007 of 2009

SJA 1008 of 2009

Counsel:

Appellant: Mr A J Robson
Respondent: Mr J Newton-Palmer

Solicitors:

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

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

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 Ramsay v Trovarello

Details

AGLC: Ramsay v Trovarello [2009] WASC 146
Case: [2009] WASC 146
Decision Date: 29 MAY 2009

CaseChat Overview and Summary

In the matter of Ramsay v Trovarello, the appellant was convicted in the Magistrates Court of Victoria of various offences, including assault occasioning bodily harm. The appellant filed an appeal against his sentence, contending that the magistrate erred by imposing a suspended imprisonment order and an intensive supervision order for a single offence. The appeal was brought before the Court of Appeal.

The court needed to determine whether the magistrate's decision to impose the orders in question was lawful, considering the legal framework applicable to sentencing in Victoria. The court also had to consider whether the appellant's absence from the hearing of an application for correction rendered the magistrate's decision invalid. Additionally, the court examined whether the appeal was filed within the appropriate time frame and whether the appellant's changed circumstances were adequately taken into account when sentencing for a breach of the suspended imprisonment order. Finally, the court had to assess the appropriate sentence for the multiple fraud offences and the status of the indicated sentence from the Drug Court.

The Court of Appeal found that the magistrate did indeed err in imposing the suspended imprisonment order and the intensive supervision order for a single offence, as these orders are not typically imposed for such an offence. The court held that the appellant's absence from the hearing of the application for correction did not invalidate the magistrate's decision, as the circumstances were not sufficiently exceptional to warrant an extension of time to appeal. The court also found that the appellant's changed circumstances were not adequately considered when sentencing for the breach of the suspended imprisonment order. In relation to the fraud offences, the court determined that the indicated sentence from the Drug Court should be taken into account when sentencing in the Magistrates Court. Ultimately, the Court of Appeal found a miscarriage of justice in respect to the totality of the final sentence and quashed the sentences. The offender was then resentenced by the court.

The final orders of the Court of Appeal were that the sentences imposed by the Magistrates Court be quashed and that the offender be resentenced by the court, taking into account the findings and considerations outlined above.

Orders