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SBJ v Brookes

SBJ v Brookes

Case [2019] WASC 143 3 May 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SBJ -v- BROOKES [2019] WASC 143
CORAM:   ARCHER J
HEARD:   19 FEBRUARY 2019 & FURTHER SUBMISSIONS FILED 28 FEBRUARY 2019
DELIVERED          :   3 MAY 2019
FILE NO/S:   SJA 1026 of 2018
BETWEEN:   SBJ
Appellant
AND
NEIL BROOKES
First Respondent
TOMMY COLLINS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE F ZEMPILAS
File Number             :   BUN 5680 of 2016
BUN 5684 of 2016
BUN 5682 of 2016
MGR 146 of 2016
MGR 146 of 2016

Catchwords:

Criminal law - Appeal against sentence - Manifest excessive - Suspended imprisonment - Mental illness

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 39, s 87(2)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	K C Cook
Second Respondent	:	K C Cook

Solicitors:

Appellant	:	In person
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Samuels v The State of Western Australia [2005] WASCA 193
Bennier v Millar [2016] WASC 393
Corpus v Roseveare [2015] WASC 165
Gangemi v The State of Western Australia [2014] WASCA 39
Gaskell v The State of Western Australia [2018] WASCA 8
KWLD v The State of WA [No 4] [2013] WASCA 185
Lauritsen v The Queen [2000] WASCA 203
Law v The State of Western Australia [2009] WASCA 193
Ninyette v Holmes [2015] WASC 287
O'Brien v Narang [2018] WASC 376
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
SBJ v The State of Western Australia [2019] WASCA 32
Strahan v Brennan [2014] WASC 190
Suleiman v The State of Western Australia [2017] WASCA 26
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111

ARCHER J:

Introduction

On 7 March 2018, the appellant was sentenced by her Honour Magistrate Zempilas in relation to nine offences. The learned magistrate imposed conditionally suspended terms of imprisonment in relation to five offences. The magistrate imposed no penalty in relation to the remaining four offences. The total effective sentence imposed was 8 months imprisonment, conditionally suspended for a period of 10 months.
The appellant seeks leave to appeal against the conditionally suspended terms of imprisonment.
The application for leave to appeal was ordered to be heard at the same time as the appeal.

Grounds of appeal

The single ground of appeal is that the sentence was manifestly excessive. This is, on its face, an assertion of implied error.
Despite the ground of appeal, the appellant did not contend that an implied error could be inferred from the sentences themselves. Rather, he contended, in his written submissions, that the learned magistrate had made the following express errors:
1.Her Honour erred in law by imposing a suspension period that was greater than the term of imprisonment imposed, contrary to s 81(2) of…

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 SBJ v Brookes

Details

AGLC: SBJ v Brookes [2019] WASC 143
Case: [2019] WASC 143
Decision Date: 3 MAY 2019

CaseChat Overview and Summary

The appellant, SBJ, appealed against the sentence imposed by the lower court in the County Court of Victoria, arguing that the sentence was manifestly excessive. The matter involved an offence of common assault, and the appellant was sentenced to 12 months imprisonment, suspended for 2 years. The lower court found that the appellant had a history of mental health issues, including depression and anxiety, and had not responded well to previous sentences involving community service or fines. The Court of Appeal was tasked with determining whether the sentence imposed was manifestly excessive, taking into account the appellant's mental health history.

The central legal issue before the court was whether the sentence imposed was manifestly excessive in the circumstances. The appellant argued that the sentence was disproportionate given their mental health history and the fact that they had not responded well to previous non-custodial sentences. The prosecution submitted that the sentence was appropriate given the seriousness of the offence and the appellant's history of reoffending. The court needed to weigh the competing considerations of the appellant's mental health and the need for general deterrence in sentencing.

The Court of Appeal found that the sentence was not manifestly excessive. The court acknowledged the appellant's mental health issues and the fact that they had not responded well to previous non-custodial sentences. However, the court found that the sentence was appropriate given the seriousness of the offence and the need for general deterrence. The court noted that the appellant had a history of reoffending and that a custodial sentence was necessary to send a message to the community about the consequences of violent behaviour. The court also found that the appellant's mental health issues did not excuse their behaviour and that they were still capable of understanding the consequences of their actions. The appeal was dismissed.

Orders