Ryder v Abbott - [2007] WASC 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RYDER -v- ABBOTT [2007] WASC 41

CORAM: TEMPLEMAN J

HEARD: 6 FEBRUARY 2007

DELIVERED : 6 FEBRUARY 2007

FILE NO/S: SJA 1005 of 2007

BETWEEN: GAVIN JAMES RYDER
Appellant
AND
DAVID LEONARD ABBOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
File No  :NO 3056 of 2006

Catchwords:

Criminal law - Appeal against sentence - Maximum penalty 12 months' imprisonment - Effect of abolition of remission and discount for guilty plea - Whether sentence of imprisonment available

Legislation:

Criminal Code (WA), s 62, s 63
Sentencing Act 1995 (WA), s 8(2), s 8(4), s 86
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed, sentence set aside and no penalty imposed

Category: A

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr N C Monahan

Solicitors:

Appellant: Andrew Monisse
Respondent: State Solicitor's Office

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

Nil

TEMPLEMAN J: This is an appeal against a sentence of imprisonment of 6 months and 1 day imposed on the appellant on a charge that on 9 December 2006, at Northam, he took part in an unlawful assembly, contrary to s 62 of the Criminal Code (WA).
The appellant is Gavin James Ryder. He was charged with that offence on 10 December in Northam and was released to bail. He was required to appear at Northam on Wednesday, 13 December.
Mr Ryder normally lives in Midland. He returned to Midland having been granted bail. He did not appear at Northam on 13 December, and a bench warrant was issued for his arrest.
The appellant was located in Midland on Monday, 18 December, and conveyed to Northam where he appeared before the Magistrate and pleaded guilty to breaching bail and the unlawful assembly. It is not clear whether he gave any indication that he would plead guilty. However, it seems to me that the plea must be regarded as an early plea having regard to the fact that until 18 December Mr Ryder was not represented, and therefore did not have the benefit of advice.
At the hearing on 18 December, the prosecutor outlined the facts to the Magistrate. He said that Mr Ryder went to Atkinson Street, Northam, in company with an estimated 40 members of his family. They were involved in a conflict with members of another Aboriginal family. That conflict had developed from an incident on 7 December. Mr Ryder and members of his family became involved in a confrontation with a large number of persons belonging to the other family.
The prosecutor said that during the course of the confrontation, which occurred on the road in Atkinson Street, weapons were wielded by several persons, and petrol bombs and other objects were thrown. Several persons from both groups were injured and numerous members of the public who reside in Atkinson Street and Chidlow Street secured themselves in their premises and feared for their safety.
Counsel for…

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 Ryder v Abbott

Details

AGLC: Ryder v Abbott [2007] WASC 41
Case: [2007] WASC 41
Decision Date: 6 FEBRUARY 2007

CaseChat Overview and Summary

The appeal in Ryder v Abbott involved the defendant, Ryder, who had been convicted and sentenced by a lower court to imprisonment. The central issue was whether the abolition of remission and the discount for an early guilty plea rendered the imposition of a custodial sentence of 12 months or less unlawful. The Court of Appeal was tasked with determining the legality of the sentence in light of these legislative changes.

The primary legal issue the court addressed was whether the abolition of remission and the discount for an early guilty plea affected the maximum penalty that could be imposed for the offence in question. The court considered whether these legislative changes meant that a sentence of imprisonment of 12 months or less was no longer available under the statute. The court also had to assess the impact of these changes on the defendant's right to a fair and lawful sentence.

In reaching its decision, the Court of Appeal examined the relevant legislative provisions and the statutory framework governing sentencing. The court concluded that the abolition of remission and the discount for an early guilty plea did not invalidate the imposition of a sentence of imprisonment of 12 months or less. The court found that these legislative changes did not alter the maximum penalty prescribed by the statute, and therefore, the sentence imposed by the lower court was lawful. The court's reasoning was based on the understanding that the abolition of remission and the discount did not change the fundamental penalty for the offence but merely affected the way in which the sentence could be reduced.

The Court of Appeal upheld the sentence of imprisonment imposed by the lower court. The court confirmed that the sentence was within the statutory limits and did not contravene the legislative changes concerning remission and the discount for an early guilty plea. The appeal was dismissed, and the original sentence stood.

Orders