RILEY -v- SMIRK [2011] WASCA 200
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 200 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:10/2011 | 10 AUGUST 2011 | |
| Coram: | MARTIN CJ NEWNES JA HALL J | 26/09/11 | |
| 18 | Judgment 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
- 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.
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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