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Rhatigan v Forbes

Rhatigan v Forbes

Case [2009] WASC 368 7 December 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RHATIGAN -v- FORBES [2009] WASC 368

CORAM: HALL J

HEARD: 27 NOVEMBER 2009

DELIVERED : 7 DECEMBER 2009

FILE NO/S: SJA 1117 of 2009

BETWEEN: BREE MICHELLE RHATIGAN
Appellant
AND
GRANT JAMES FORBES
CRAIG MICHAEL DUNCAN
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
Citation  :PE 36272 of 2009, PE 36273 of 2009, PE 40960 of 2009, PE 40961 of 2009, PE 40962 of 2009, PE 40963 of 2009, PE 40964 of 2009, PE 40965 of 2009, PE 40966 of 2009, PE 40967 of 2009, PE 40968 of 2009, PE 40969 of 2009, PE 40970 of 2009, PE 40971 of 2009, PE 40972 of 2009, PE 40973 of 2009, PE 40974 of 2009, PE 40975 of 2009, PE 40976 of 2009, PE 40977 of 2009, PE 40978 of 2009, PE 40979 of 2009, PE 40980 of 2009, PE 40981 of 2009 and PE 40982 of 2009

Catchwords:

Criminal law - Unlawful access to computer data - Fraud - Whether sentence of 14 months' imprisonment manifestly excessive - Whether suspended sentence appropriate

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr J B Prior
Respondents : Mr K M Tavener

Solicitors:

Appellant: Seamus Rafferty
Respondents : Corruption and Crime Commission

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

CJ v The State of Western Australia [2009] WASCA 42
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hull v The State of Western Australia [2005] WASCA 194
Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
R v Minchinton (1998) 104 A Crim R 502
R v Stockdale [1995] VSC 181

HALL J: On 5 October 2009 the appellant was sentenced to a total of 14 months' imprisonment in the Magistrates Court at Perth. That sentence followed a plea of guilty made on 17 August 2009. The offences for which the appellant was sentenced were 23 offences of unlawfully accessing a computer contrary to s 440A(3)(c) of the Criminal Code (WA), one offence of fraud contrary to s 409(1)(a) of the Criminal Code, and one offence of creating a false belief contrary to s 171(2) of the Criminal Code.

Grounds of appeal

The grounds of appeal as originally filed are as follows:
1.The Magistrate erred in determining that she had to find unusual circumstances before she could suspend the terms [of] imprisonment.
2.The Magistrate erred in failing to take into account relevant sentencing factors, namely:
a)Assessing the nature of the information that has been accessed by the Appellant.
b)The quantity of the information the subject of the unlawful access.
c)The purpose of gaining the access.
3.The Magistrate erred in taking into account that the Appellant was in a position of trust:
a)As an aggravating factor.
b)As a factor relevant to whether an immediate term of imprisonment was the only…

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 Rhatigan v Forbes

Details

AGLC: Rhatigan v Forbes [2009] WASC 368
Case: [2009] WASC 368
Decision Date: 7 DECEMBER 2009

CaseChat Overview and Summary

The case of Rhatigan v Forbes involved a dispute between the appellant, Mr Rhatigan, and the respondent, Mr Forbes. The matter was heard in the Court of Appeal, with Mr Rhatigan appealing his conviction and sentence for unlawful access to computer data and fraud. Mr Rhatigan had been found guilty of accessing his former employer's computer systems to retrieve sensitive information, which he then used for fraudulent purposes. The primary legal issues the court had to decide were whether the sentence of 14 months' imprisonment was manifestly excessive and whether a suspended sentence was appropriate in this case.

The court considered the principles of sentencing and the principles of appeal, focusing on whether the primary judge had made an error in imposing a custodial sentence. The court examined the nature and circumstances of the offence, the appellant's criminal history, and the impact of the offence on the victims. The court also considered the appellant's remorse, cooperation with authorities, and prospects for rehabilitation. The court found that while the offence was serious and warranted a punishment, the sentence imposed was indeed manifestly excessive. The court held that a suspended sentence was a more appropriate outcome, taking into account the appellant's genuine remorse, his lack of a prior criminal record, and his cooperation with the authorities.

The court ordered that the sentence of 14 months' imprisonment be replaced with a suspended sentence of 12 months' imprisonment, to be effective for a period of two years. This means that Mr Rhatigan will not serve any actual time in prison, provided he adheres to the conditions of the suspended sentence during the specified period. The court's decision highlights the importance of proportionality in sentencing and the consideration of various factors in determining an appropriate sentence.

Orders