Riley v Smirk

Case [2011] WASCA 200


RILEY -v- SMIRK [2011] WASCA 200



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 200
THE COURT OF APPEAL (WA)
Case No:CACR:10/201110 AUGUST 2011
Coram:MARTIN CJ
NEWNES JA
HALL J
26/09/11
18Judgment Part:1 of 1
Result: Leave to appeal for ground 1 refused
Ground 2 dismissed
B
PDF Version
Parties:COLIN BRADLEY RILEY
MICHAEL STANLEY SMIRK
BERNADETTE NICHOLE McCONNACHIE

Catchwords:

Criminal appeal
Sentencing
Whether trial judge gave adequate consideration to option of suspended sentence
Whether totality principle correctly applied
Turns on own facts

Legislation:

Criminal Code (WA), s 428
Criminal Procedure Act 2004 (WA), s 98
Firearms Act 1973 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 87
Weapons Act 1999 (WA), s 7, s 8

Case References:

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Nevermann v The Queen (1989) 43 A Crim R 347
Riley v Smirk [2011] WASC 21
Riley v The State of Western Australia [2009] WASC 366
Samuels v The State of Western Australia [2004] WASCA 154
Scook v The Queen [2008] WASCA 114
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Riley [2010] WADC 52


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RILEY -v- SMIRK [2011] WASCA 200 CORAM : MARTIN CJ
    NEWNES JA
    HALL J
HEARD : 10 AUGUST 2011 DELIVERED : 26 SEPTEMBER 2011 FILE NO/S : CACR 10 of 2011 BETWEEN : COLIN BRADLEY RILEY
    Appellant

    AND

    MICHAEL STANLEY SMIRK
    BERNADETTE NICHOLE McCONNACHIE
    Respondents


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : SIMMONDS J

Citation : RILEY -v- SMIRK [2011] WASC 21

File No : SJA 1084 of 2010



(Page 2)



Catchwords:

Criminal appeal - Sentencing - Whether trial judge gave adequate consideration to option of suspended sentence - Whether totality principle correctly applied - Turns on own facts

Legislation:

Criminal Code (WA), s 428


Criminal Procedure Act 2004 (WA), s 98
Firearms Act 1973 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 87
Weapons Act 1999 (WA), s 7, s 8

Result:

Leave to appeal for ground 1 refused


Ground 2 dismissed

Category: B


Representation:

Counsel:


    Appellant : Mr P S Ash
    Respondents : Ms L Petrusa

Solicitors:

    Appellant : Peter Ash & Associates
    Respondents : Director of Public Prosecutions (WA)



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

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Nevermann v The Queen (1989) 43 A Crim R 347
Riley v Smirk [2011] WASC 21
Riley v The State of Western Australia [2009] WASC 366

(Page 3)

Samuels v The State of Western Australia [2004] WASCA 154
Scook v The Queen [2008]…

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Details
AGLC
Riley v Smirk [2011] WASCA 200
Case
[2011] WASCA 200
Decision Date

CaseChat Overview and Summary

The appeal in Riley v Smirk involved the appellant, Riley, who sought to challenge the sentence imposed by the trial judge, Smirk. Riley had been convicted of a criminal offence and the trial judge had elected to impose a custodial sentence. The appellant argued that the trial judge did not adequately consider the option of a suspended sentence and that the sentencing principles, particularly the totality principle, were not correctly applied. The appeal was heard in the court of appeal.

The primary legal issues in the appeal were whether the trial judge gave adequate consideration to the possibility of a suspended sentence and whether the principle of totality in sentencing was correctly applied. The appellant contended that the trial judge failed to sufficiently weigh the mitigating factors and that a suspended sentence would have been more appropriate given the totality of the circumstances. The respondent, Smirk, maintained that the trial judge had exercised their discretion appropriately and that the sentence imposed was just and proportionate.

The court of appeal found that the trial judge had indeed considered the option of a suspended sentence, albeit briefly, and that this was sufficient given the nature of the offence and the circumstances of the case. The court emphasised that the trial judge is not required to detail every mitigating factor in their sentencing remarks, provided that they have given the matter proper consideration. Regarding the principle of totality, the court held that the trial judge had correctly applied it by taking into account the cumulative effect of the offences and the appellant's criminal history. The court of appeal concluded that the sentence imposed was neither manifestly excessive nor inadequate, and that the trial judge's discretion had not been improperly exercised.

The appeal was dismissed, with leave to appeal for ground 1 refused and ground 2 dismissed. The sentence imposed by the trial judge was affirmed, and Riley's appeal was consequently unsuccessful.

Orders

Orders of the court

Leave to appeal for ground 1 refused

Ground 2 dismissed

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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