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S v The Queen

S v The Queen

Case [2003] WASCA 309 10 December 2003

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"S" -v- THE QUEEN [2003] WASCA 309

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 309
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:112/2003	Heard:	6 NOVEMBER 2003
Coram:	MILLER J MCKECHNIE J WALLWORK AJ	Delivered:	10/12/03
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Sentence varied by suspension of term for 2 years
Category:	B
PDF Version

Parties:	"S" THE QUEEN
Catchwords:	Criminal law Sentence Attempting to pervert the course of justice Sentence of 2 years' imprisonment Offender mother of a disabled child Medical evidence that child required both parents Whether sentence ought to have been suspended
Legislation:	Crimes Act 1914 (Cth)
Case References:	Adams v The Queen [2003] WASCA 91 Dodd v Hoogewerf [2002] WASCA 15 Dodd v Hoogewert [2002] WASCA 15 Franklyn v R (1981) 3 Cr App R 65 Haleth v R (1982) 4 Cr App R 178 Hodder v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Nguyen v The Queen (2001) 160 FLR 284 R v Hinton (2002) 134 A Crim R 286 R v Stewart (1994) 72 A Crim R 17 Stewart v The Queen, unreported; CCA SCt of WA; Library No 940081; 21 February 1994 Vaughan v R (1982) 4 Cr App R 83 Whitehead v R [1996] 1 Cr App R 111 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Morgan v R (1995) 82 A Crim R 518

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "S" -v- THE QUEEN [2003] WASCA 309 CORAM : MILLER J

MCKECHNIE J

WALLWORK AJ

HEARD : 6 NOVEMBER 2003 DELIVERED : 10 DECEMBER 2003 FILE NO/S : CCA 112 of 2003 BETWEEN : "S"

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentence - Attempting to pervert the course of justice - Sentence of 2 years' imprisonment - Offender mother of a disabled child - Medical evidence that child required both parents - Whether sentence ought to have been suspended

Legislation:

Crimes Act 1914 (Cth)

Result:

Leave to appeal granted

(Page 2)

Appeal allowed
Sentence varied by suspension of term for 2 years

Category: B

Representation:

Counsel:

Appellant : Mr R G W Bayly

Respondent : Mr J Mactaggart

Solicitors:

Appellant : Bayly & O'Brien

Respondent : State Director of Public Prosecutions

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

Adams v The Queen [2003] WASCA 91
Dodd v Hoogewerf [2002] WASCA 15
Dodd v Hoogewert [2002] WASCA 15
Franklyn v R (1981) 3 Cr App R 65
Haleth v R (1982) 4 Cr App R 178
Hodder v The Queen (1995) 15 WAR 264
James (1985) 14 A Crim R 364
Lowndes v The Queen (1999) 195 CLR 665
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Nguyen…

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 S v The Queen

Details

AGLC: S v The Queen [2003] WASCA 309
Case: [2003] WASCA 309
Decision Date: 10 DECEMBER 2003

CaseChat Overview and Summary

In the matter of S v The Queen, the defendant was convicted of attempting to pervert the course of justice and was sentenced to a two-year imprisonment term. The defendant is a mother of a disabled child, and she appealed against her sentence, arguing that it should have been suspended. The legal issue before the court was whether the sentence should have been suspended, given the defendant's role as the primary caregiver for her disabled child. The court considered the importance of both parents in the upbringing of a disabled child and the impact of the defendant's absence on her child. The court found that the sentence should have been suspended, and the appeal was allowed. The sentence was varied by suspending the two-year term for two years, taking into account the defendant's role as the primary caregiver for her disabled child. The decision highlights the importance of considering the impact of a custodial sentence on vulnerable individuals, such as disabled children, and the need for courts to balance the needs of the community with the needs of individual defendants.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Sentence varied by suspension of term for 2 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

S v The Queen [2003] WASCA 309

Most Recent Citation

Lyon v Read [2012] WASC 96

Cases citing this decision · 11 of 11 shown

FM v WA Police
[2025] WASC 241 Para 3

…This is particularly the case where the offender and her children have been affected by domestic violence. [23] See by way of analogy, S v The Queen [2003] WASCA 309, where the court considered the impact of a disabled child being deprived of the care of both parents.…
HJT v The State of Western Australia
[2020] WASCA 120 Para 2

…was 'an example of the need to draw back in mercy'[71] which justified the imposition of a suspended term of imprisonment. [68] S v The Queen [2003] WASCA 309. [69] S v The Queen [5]. [70] S v The Queen [18]. [71] S v The Queen [30].…
Jneid v The State of Western Australia
[2018] WASCA 67 Para 20

…ime or opportunity to consider the consequences to the children should the parents be caught' (455). The same is true in this case. S v The Queen [2003] WASCA 309 is an example of a situation in which the court was prepared to 'draw back in mercy' to impose a suspended term of imprisonment, in light of the effect o…
Elshani v R
[2015] NSWCCA 254 Para 5

…nclair (1990) 51 A Crim R 418 at 430-431; Nguyen v The Queen [2001] WASCA 119; 160 FLR 284 at [39] (Malcolm CJ), [66] (Wallwork J); S v The Queen [2003] WASCA 309 at [29] (Miller J, Mckechnie J agreeing) cf Wallwork AJ dissenting at [39]; R v Huston; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 350; 21…
Spence v The State of Western Australia
[2014] WASCA 171 Para 13

…prisonment for an attempt to have another person damage the cars of prosecution witnesses in order to prevent them attending court) and S v The Queen [2003] WASCA 309 (2 years' suspended imprisonment for the creation of text messages to falsely implicate the offender's ex‑husband in a sexual offence against their c…
R v Zerafa
[2013] NSWCCA 222 Para 1

…ired exceptional circumstances to be demonstrated ( Nguyen v R [2001] WASCA 119 at [39] per Malcolm CJ and at [66] per Wallwork J). Further, in S v R [2003] WASCA 309 at [29] Miller J, with whom McKechnie J agreed, restated the need for exceptional circumstances in cases which seek to invoked s 16A(2)(p). Wallwork…
Abfahr v The State of Western Australia
[2013] WASCA 87

…ueen [2000] WASCA 52 Petrelis v The State of Western Australia [2012] WASCA 235 Rolfe v The State of Western Australia [2012] WASCA 169 S v The Queen [2003] WASCA 309 Skipworth v The State of Western Australia [2008] WASCA 64 Stephens v The State of Western Australia [2005] WASCA 98 Stewart v The Queen (1994) 72 A…
The State of Western Australia v Chapman
[2012] WASCA 203 Para 5

…S v The Queen [2003] WASCA 309 is an example of a situation in which the court was prepared to 'draw back in mercy' to impose a suspended term of imprisonment, in light of the effect of imprisonment on the severely disabled child of the offender. The medical evidence in that case suggested that the absence of eithe…
Lyon v Read
[2012] WASC 96

…v Dwyer [2010] WASC 28 Postiglione v The Queen (1997) 189 CLR 295 Riley v Smirk [2011] WASC 21 Rossister v Francisty [2005] WASC 270 'S' v The Queen [2003] WASCA 309 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Scanlon v Bove [2008] WASC 213 Sheiner v Roberts [2009] WASC 281 Shooter…
The State of Western Australia v Wynne
[2008] WASCA 195

…209 CLR 339 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Pop v The Queen [2000] WASCA 283 R v Hinton (2002) 134 A Crim R 286 S v The Queen [2003] WASCA 309 Stewart (1994) 72 A Crim R 17 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Porter [2008] WASCA 154 The St…
Hull v The State of Western Australia
[2005] WASCA 194

…15 R v Nevermann (1989) 43 A Crim R 347 R v Rowe (1991) 52 A Crim R 196 R v Stewart (1994) 72 A Crim R 17 R v Zamagias [2002] NSWCCA 17 S v The Queen [2003] WASCA 309 Samuel v The State of Western Australia [2004] WASCA 154 R v Bekink (1999) 107 A Crim R 415 R v Liddington (1997) 18 WAR 394 R v Wallis [1999] QCA 28…

View all 11 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Hodder
[2024] NZHC 459

…[2003] WASCA 91 Dodd v Hoogewerf [2002] WASCA 15 Dodd v Hoogewert [2002] WASCA 15 Franklyn v R (1981) 3 Cr App R 65 Haleth v R (1982) 4 Cr App R 178 Hodder v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273…
R v Stewart
[2010] SASCFC 72

…ever, when the degree of hardship is exceptional if the parents of a child or a parent of the child is imprisoned, different considerations apply. In R v Stewart (1994) 72 A Crim R 17, Franklyn J (at 21), put it this way:…
Adams v The Queen
[2003] WASCA 91

…Adams v The Queen [2003] WASCA 91 Dodd v Hoogewerf [2002] WASCA 15 Dodd v Hoogewert [2002] WASCA 15 Franklyn v R (1981) 3 Cr App R 65 Haleth v R (1982) 4 Cr App R 178 Hodder v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs…
R v Hinton
[2002] NSWCCA 405

…25 In R v Hinton (2002) 134 A Crim R 286, the respondent was a customer service operator in Centrelink and thus employed by the Commonwealth. Over a period of some 9 months she received allowances for each of 16 identities she had created for the purpose of defrauding the Commonwealth, receiving a sum in excess of $…
Nguyen v The Queen
[2001] WASCA 176

…1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Nguyen v The Queen (2001) 160 FLR 284 R v Hinton (2002) 134 A Crim R 286 R v Stewart (1994) 72 A Crim R 17 Stewart v The Queen, unreported; CCA SCt of WA; Library No 940081; 21 February 1…
Dinsdale v The Queen
[2000] HCA 54

…eported; CCA SCt of WA; Library No 940081; 21 February 1994 Vaughan v R (1982) 4 Cr App R 83 Whitehead v R [1996] 1 Cr App R 111 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Morgan v R (1995) 82 A Crim R 518…
Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20

…v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Nguyen v The Queen (2001) 160 FLR 284 R v Hinton (2002) 134 A Crim R 286 R v Stewart (1994) 72 A Crim R 17 Stewart v The Queen, unreported; CCA SCt o…
House v R
[1936] HCA 40

…40081; 21 February 1994 Vaughan v R (1982) 4 Cr App R 83 Whitehead v R [1996] 1 Cr App R 111 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Morgan v R (1995) 82 A Crim R 518…
Lowndes v The Queen
[1999] HCA 299

…[2002] WASCA 15 Franklyn v R (1981) 3 Cr App R 65 Haleth v R (1982) 4 Cr App R 178 Hodder v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Nguyen v The Queen (2001) 160 FLR 284 R v Hinton (2002) 134 A Crim…
Dodd v Hoogewerf
[2002] WASCA 15

…Adams v The Queen [2003] WASCA 91 Dodd v Hoogewerf [2002] WASCA 15 Dodd v Hoogewert [2002] WASCA 15 Franklyn v R (1981) 3 Cr App R 65 Haleth v R (1982) 4 Cr App R 178 Hodder v The Queen (1995) 15 WAR 264 James (1985) 14 A Crim R 364 Lowndes v The Queen (1999) 195 CLR 665 Minister for Immigration and Ethnic Affairs…
House v The King
63 WN 176

…WA; Library No 940081; 21 February 1994 Vaughan v R (1982) 4 Cr App R 83 Whitehead v R [1996] 1 Cr App R 111 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Morgan v R (1995) 82 A Crim R 518…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
1 mention