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Roberts v Spencer

Roberts v Spencer

Case [2020] WASC 255 3 July 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROBERTS -v- SPENCER [2020] WASC 255
CORAM:   DERRICK J
HEARD:   2 JULY 2020
DELIVERED          :   3 JULY 2020
FILE NO/S:   SJA 1031 of 2020
BETWEEN:   KYLIE MARIE ROBERTS
Appellant
AND
ASHLEIGH LAUREN SPENCER
First Respondent
AARON CARTER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B MAHON
File Number            :   AR 8285 of 2019, AR 14741 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant sentenced for aggravated assault occasioning bodily harm offence to six months and one day imprisonment conditionally suspended for 12 months - Appellant reoffended during term of conditional suspended imprisonment order - Magistrate ordered appellant to serve five months of the conditionally suspended term of imprisonment pursuant to s 84F(1)(b) of the Sentencing Act 1995 (WA) - Whether magistrate failed to consider making an order pursuant to s 84F(1)(b) of the Sentencing Act 1995 (WA) requiring the appellant to serve less than five months of the conditionally suspended term of imprisonment - Whether magistrate failed to consider making an order pursuant to s 84F(1)(c) of the Sentencing Act 1995 (WA) - Whether magistrate erred in ordering the appellant to serve five months of the conditionally suspended term of imprisonment - Whether magistrate erred in failing to make an order pursuant to s 84F(1)(c) of the Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Rules 2005 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time within which to appeal refused
Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
First Respondent	:	Mr B M Murray
Second Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Kate King Legal
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Dillon v The State of Western Australia [2020] WASCA 24
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Harper v Page [2004] WASCA 267
Kelly v The State of Western Australia [2020] WASCA 29
Lang v The State of Western Australia [2011] WASCA 153
Mason v The State of Western Australia [2018] WASCA 43
NTH v The State of Western Australia [2020] WASCA 22
Page v The State of Western Australia [2018] WASCA 76
Pedersen v The State of Western Australia [2010] WASCA 175
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vagh v The State of Western Australia [2007] WASCA 17
Willenberg v Downey [2015] WASC 282
Zinga v Johnson [2012] WASC 216

DERRICK J:

Introduction

On 6 August 2019 the appellant was convicted in the Magistrates Court on her plea of guilty of one offence of unlawful…

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 Roberts v Spencer

Details

AGLC: Roberts v Spencer [2020] WASC 255
Case: [2020] WASC 255
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

The appellant, Roberts, appealed against his sentence for an aggravated assault occasioning bodily harm offence, which resulted in a six months and one day imprisonment term conditionally suspended for 12 months. The appellant reoffended during the term of the conditional suspended imprisonment order, leading the magistrate to order him to serve five months of the conditionally suspended term of imprisonment pursuant to section 84F(1)(b) of the Sentencing Act 1995 (WA). The appellant argued that the magistrate failed to consider making an order under section 84F(1)(b) requiring him to serve less than five months of the conditionally suspended term of imprisonment and that the magistrate failed to consider making an order under section 84F(1)(c) of the Sentencing Act 1995 (WA). The appellant also claimed that the magistrate erred in ordering him to serve five months of the conditionally suspended term of imprisonment and in failing to make an order pursuant to section 84F(1)(c) of the Sentencing Act 1995 (WA).

The court examined whether the magistrate erred in ordering the appellant to serve five months of the conditionally suspended term of imprisonment and whether the magistrate failed to consider making an order under section 84F(1)(b) and section 84F(1)(c) of the Sentencing Act 1995 (WA). The court found that the magistrate was not required to consider making an order under section 84F(1)(b) or section 84F(1)(c) of the Sentencing Act 1995 (WA) as the appellant's reoffending constituted a breach of the conditions of the suspended sentence, and the magistrate was entitled to impose a custodial sentence for the breach. The court further found that the magistrate did not err in ordering the appellant to serve five months of the conditionally suspended term of imprisonment, as the magistrate had considered the appellant's circumstances and the nature of the offence and concluded that a custodial sentence was appropriate.

The court dismissed the appeal against sentence. The appellant was ordered to serve five months of the conditionally suspended term of imprisonment. The appeal was dismissed with costs to be paid by the appellant.

Orders