ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P RICHARDSON
File No  :MH 2350 of 2014

Catchwords:

Criminal law - Appeal against sentence - Breach of a police order contrary to s 61 Restraining Orders Act 1997 (WA) - Two previous offences - Whether s 61A applicable - Whether sentence of 7 months' imprisonment unjust - Failure to take time in custody into account - Failure to comply with s 9AA Sentencing Act 1995 (WA)

Legislation:

Restraining Orders Act 1997 (WA), s 61A
Spent Convictions Act 1988 (WA), s 14, s 25

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside and appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr D B Nelson

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Burrows v The State of Western Australia [2014] WASCA 147
Casotti v Pickering [2013] WASC 174
D'Costa v Roe [2013] WASC 99
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Plant v Harrington [2010] WASC 364
Roe v D'Costa [2014] WASCA 118
Smith v C [2001] WASCA 262
Zinga v Johnson [2012] WASC 216

HALL J: This appeal against sentence was heard by me on 25 March 2015. At the conclusion of the hearing I granted leave to appeal, allowed the appeal, set aside the sentence imposed by the magistrate and resentenced the appellant. The following are my reasons for allowing the appeal.
On 11 February 2015 the appellant was sentenced to 7 months' imprisonment for breaching a police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA). He sought leave to appeal against that sentence on grounds that included that the magistrate had failed to give credit for 83 days that the appellant had spent in custody in respect of the offence prior to being sentenced. The respondent conceded that ground and accepted that, material error in the sentencing having occurred, it was appropriate for the appeal to be allowed and for the appellant to be resentenced. For the reasons that follow that concession was properly made. I will also give consideration in these reasons to the other grounds of appeal.

The facts

The facts of the offence are as follows. At 9.15 pm on 15 May 2014 the appellant was at the Peel Caravan Park in Furnissdale. Also present was the appellant's…

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 Rogers v Hitchcock

Details

AGLC: Rogers v Hitchcock [2015] WASC 120
Case: [2015] WASC 120
Decision Date: 7 APRIL 2015

CaseChat Overview and Summary

The case of Rogers v Hitchcock involved the appellant, Rogers, appealing against his sentence of seven months' imprisonment for breaching a police order. The police order was issued under section 61 of the Restraining Orders Act 1997 (WA). Rogers had two previous offences, and the issue at hand was whether section 61A of the Act applied to his case, and if the sentence was unjust. The appeal was heard in the Court of Appeal of Western Australia.

The legal issues before the court were whether section 61A of the Act applied to the appellant's case, given his previous offences, and whether the sentence imposed was unjust. The court also considered whether the sentencing judge had failed to take into account the time Rogers had already spent in custody and whether the sentence complied with section 9AA of the Sentencing Act 1995 (WA). The appellant argued that the sentence was excessive, and the court should have taken into account the time already served.

The Court of Appeal found that section 61A of the Act did apply to the appellant's case due to his previous offences. However, the court held that the sentence was not unjust, as the sentencing judge had considered the appellant's previous convictions and the seriousness of the breach. The court also found that the sentencing judge had taken into account the time already served by the appellant. The Court of Appeal dismissed the appeal, finding that the sentence was appropriate and complied with the relevant provisions of the Sentencing Act.

No further orders were made by the Court of Appeal. The decision stands that the sentence imposed on Rogers for breaching the police order was appropriate and in compliance with the relevant legislative provisions.

Orders