Sakkers v Thornton

Case [2009] WASC 175

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SAKKERS -v- THORNTON [2009] WASC 175

CORAM:   SIMMONDS J

HEARD:   27 MAY 2009

DELIVERED          :   22 JUNE 2009

FILE NO/S:   SJA 1106 of 2008

BETWEEN:   JAMIE DONALD SAKKERS

Appellant

AND

PAUL HARVEY THORNTON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HEANEY

File No  :PE 58697 of 2008, PE 58698 of 2008, PE 58699 of 2008, PE 58700 of 2008, PE 58701 of 2008, PE 58702 of 2008, PE 58703 of 2008, PE 58704 of 2008, PE 58705 of 2008, PE 58706 of 2008, PE 58707 of 2008, PE 58708 of 2008, PE 58709 of 2008, PE 58710 of 2008, PE 58711 of 2008, PE 58712 of 2008

Catchwords:

Criminal law and procedure - Sentencing - Appeal against sentences by magistrate on charges of aggravated stalking, breaches of restraining order and aggravated possession of firearm - Sentencing on offence where evidence necessary to establish commission of that offence also necessary to establish commission of another offence on which offender also sentenced - Whether error in relation to totality principle - Whether double punishment - Whether individual sentences manifestly excessive - Whether failure properly to approach sentencing at the maximum penalty in a court of summary jurisdiction - Whether error in approaching matter of suspended sentence

Legislation:

Criminal Code (WA), s 5, s 338E
Firearms Act 1973 (WA), s 8, s 19, s 23, s 27A
Restraining Orders Act 1997 (WA), s 14, s 61
Sentencing Act 1995 (WA), s 11

Result:

Appeal allowed
Sentences for breaches of restraining order quashed

Category:    B

Representation:

Counsel:

Appellant:     Mr M T Trowell QC & Mr A G Spashett

Respondent:     Mr M G Nicol

Solicitors:

Appellant:     Dean R Love & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Anglesey v The Queen [2002] WASCA 194

Bosworth v State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Carr v State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Cranssen v The King (1936) 55 CLR 509

Dinsdale v The Queen (2000) 202 CLR 321

Evans v Vanderheide [2001] WASCA 352

Furber v The Queen [2008] WASCA 233

Gilmour v The State of Western Australia [2008] WASCA 42

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

Hellings v The Queen [2003] WASCA 208

House v The King (1936) 55 CLR 499

James (1985) 14 A Crim R 364

Luckman v Leucas [2001] WASCA 57

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Nevermann (1989) 43 A Crim R 347

Owens v The Queen (Unreported, WASCA, Library No 980326, 17 June 1998)

R v Tait and Bartley (1979) 24 ALR 473

Sweeney v Corporate Security Group [2003] SASC 324

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

Continue reading Sakkers v Thornton

Sign in free to access the full text

Details
AGLC
Sakkers v Thornton [2009] WASC 175
Case
[2009] WASC 175
Decision Date

CaseChat Overview and Summary

The case of Sakkers v Thornton involved an appeal against sentences given by a magistrate to the appellant on charges of aggravated stalking, breaches of a restraining order, and aggravated possession of a firearm. The appellant challenged the sentences on several grounds, including whether the totality principle had been properly applied, whether there had been double punishment, whether the individual sentences were manifestly excessive, whether the court had properly approached the sentencing at the maximum penalty in a court of summary jurisdiction, and whether there was an error in the approach to the matter of a suspended sentence. The court was required to decide these legal issues to determine the validity of the sentences and whether they should be upheld or quashed.

The court found that there was an error in the magistrate's approach to sentencing, specifically in relation to the principle that a person should not be sentenced twice on the same evidence. The evidence necessary to establish the commission of the offence of aggravated stalking was also the evidence necessary to establish the commission of the breaches of the restraining order. The court determined that the sentences for the breaches of the restraining order should be quashed, and the sentence for the stalking offence should stand, as it subsumed all of the factual circumstances of the breaches. The court also found that the totality principle had not been properly applied, and the total sentence of 19 months and 2 weeks was not a just and appropriate measure of the total criminality involved in the offending.

The court upheld the appeal on the ground that the sentences for the breaches of the restraining order were quashed, resulting in a reduced total sentence of 19 months and 2 weeks. The court did not find that the sentences were manifestly excessive or that there had been double punishment. The court also found no error in the approach to the matter of a suspended sentence. The appeal was allowed, and the sentences for the breaches of the restraining order were quashed.

The final orders were that the appeal was allowed, and the sentences for the breaches of the restraining order were quashed. The sentence for the stalking offence remained in place, and the total sentence was reduced to 19 months and 2 weeks.

Orders

Orders of the court

Appeal allowed

Sentences for breaches of restraining order quashed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sentencing Act 1995 (WA) s 11(1) provides as follows:11. Person not to be sentenced twice on same evidence (1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences. See also Owens v The Queen (Unreported, WASCA, Library No 980326, 17 June 1998) Murray J, 10 ‑ 11. Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order. The sentences for the 12 breaches of violence restraining order, globally, are the same as the sentence for the aggravated stalking. As counsel for the respondent indicated, and as counsel for the appellant agreed, the effect of upholding the appeal on this ground, assuming no other ground is upheld, should be that there be no penalty for the 12 breaches of the violence restraining order. The result would be to lower the total sentence from 31 months and 2 weeks to 19 months and 2 weeks. Counsel for the respondent indicated that it should be the sentences for the breaches of the restraining orders offences that are set aside. The sentence for the stalking offence should stand, as that offence subsumed all of the factual circumstances the subject of the breaches of the violence restraining orders, and also other matters. Reference was made to the Facebook entries referred to in the prosecutor's recital of the circumstances of the offending, above. I did not understand counsel for the appellant to disagree. I consider that treatment of the offences to be the appropriate one. It follows I would uphold the present ground of appeal in the respect indicated in the previous paragraph. It was not in contest that the totality principle should be applied having regard to the upholding of the previous ground. Nor was it in contest that the totality principle requires a sentencing officer to evaluate the total sentence to be imposed to see that it is a just and appropriate measure of the total criminality involved, and that the sentence does not represent the imposition on the offender of a 'crushing sentence', where '[t]he word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release': see Carr v State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA). The appellant's submissions in relation to this ground were that a total sentence of 19 months and 2 weeks was not a just and appropriate measure of the total criminality involved in the offending for which the sentencing was being carried out, and was in any event a crushing sentence. It is not in contest that the application of the totality principle involves the total sentence being reviewed to see that it bears a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Bosworth v State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, 18 (McLure JA), referring to Woods v The Queen (1994) 19 WAR 341, 352 (Anderson J); see also Bosworth [2] (Steytler P).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.