Richardson v Pickett - [2008] WASC 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RICHARDSON -v- PICKETT [2008] WASC 203

CORAM: McKECHNIE J

HEARD: 20 AUGUST 2008

DELIVERED : 23 SEPTEMBER 2008

FILE NO/S: SJA 1044 of 2008

BETWEEN: ROBERTA LYNN RICHARDSON
Appellant
AND
WILLIAM ALBERT PICKETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L H JONES
File No  :AR 4193 of 2008, AR 4194 of 2008

Catchwords:

Criminal law and procedure - Sentence - Assault with intent to cause grievous bodily harm - Offender 18 years - Whether sentence should be suspended - Magistrate not viewing surveillance footage - Whether an error

Legislation:

Nil

Result:

Appeal allowed
Order for suspension revoked

Category: D

Representation:

Counsel:

Appellant: Ms S Markham
Respondent: Ms F R Veltman

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Frances Veltman

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

Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Faithfull [2004] WASCA 39

McKECHNIE J: This is a prosecution appeal against the suspension of a sentence of imprisonment following conviction after pleas of guilty for assault with intent to do grievous bodily harm and being armed in a way that may cause fear. The respondent was sentenced as follows:

Assault with intent to do GBH

[Code 317A(b)]

Actual - 16 months IMP suspended for 2 years

[Max summary penalty - 2 years IMP or $24,000]

Being armed in a way that may cause fear

[Code 68(1)]

Actual - 6 months IMP suspended for 2 years

[Max summary penalty - 3 years IMP or $36,000]

The facts, as accepted by the respondent, were at 3.00 am on 5 April 2008, the respondent and two other males (one adult, one juvenile) attended a 24‑hour Gull service station in Armadale in pursuit of the complainant and his friend. The respondent was armed with a machete. The juvenile was armed with two tomahawks and the third male was armed with a machete and bricks. The complainant hid behind shelving inside the service station. The juvenile forced open the glass doors of the service station using the tomahawks.
The respondent and others entered the service station and pursued the complainant around the shop, wielding the weapons. As the complainant attempted to run out, the respondent caught him and struck him twice to the head area with the machete. The juvenile co‑offender struck the complainant several times to the head and body with the tomahawks. The incident occurred in view of the service station console operator and was clearly captured on surveillance footage.
As a result of the attack, the complainant received 8 wounds to the rear of his head, exposing his skull. The injury resulted in loss of sensation to the complainant's left ear. He also suffered broken bones in his left hand and lacerations to his right hand and forearm. A CT scan revealed that the complainant had suffered skull fractures as a result of the attack.
The main ground…

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 Richardson v Pickett

Details

AGLC: Richardson v Pickett [2008] WASC 203
Case: [2008] WASC 203
Decision Date: 23 SEPTEMBER 2008

CaseChat Overview and Summary

In the matter of Richardson v Pickett, the defendant appealed against his sentence for an assault with intent to cause grievous bodily harm, which occurred when he was 18 years old. The magistrate had sentenced the defendant to a period of imprisonment but suspended the sentence on certain conditions. The primary issue before the court was whether the magistrate had erred by not viewing surveillance footage available to the court prior to passing sentence. The secondary issue was whether the sentence should have been suspended.

The court determined that the magistrate's decision not to view the surveillance footage amounted to an error, as the footage was an essential part of the evidence that could have impacted the sentencing decision. The court further found that the sentencing principles and the nature of the offence warranted a custodial sentence, and that the circumstances did not justify a suspension of the sentence. The court held that the magistrate's failure to view the footage was a significant error that affected the sentence passed, and therefore the appeal was allowed, and the order for suspension was revoked.

Orders

Orders of the court

Appeal allowed

Order for suspension revoked

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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