ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 20613 of 2009

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether magistrate convicted on factual basis not relied upon by prosecution - Whether verdict of guilt was against the evidence or weight of the evidence - Whether magistrate made errors of fact - Whether substantial miscarriage of justice

Criminal law and procedure - Sentencing - Relevance of community expectations in the sentencing process - Whether sentence manifestly excessive - Whether magistrate erred by finding attack unprovoked - Relevance of prevalence to sentencing process - Correct starting point for consideration of sentence - Overview of appellate cases - Relevance of public humiliation arising from the media treatment of an offender - Consideration of suspended sentence

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14(2), s 14(5), s 30(3)
Criminal Code (WA), s 23A, s 23B, s 301
Evidence Act 1906 (WA), s 79C
Liquor Control Act 1988 (WA)
Sentencing Act 1995 (WA), s 6

Result:

Grounds 1 to 3 of the appeal against conviction dismissed
Grounds 1 and 2 of the appeal against sentence dismissed
Ground 3 of the appeal against sentence upheld
Sentencing discretion exercised afresh
Appellant resentenced to 12 months imprisonment backdated to 14 September 2010, eligible for parole

Category: A

Representation:

Counsel:

Appellant: Mr S Vandongen & Mr S Rafferty
Respondent: Mr L M Fox

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)

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

Browne v Dunn (1893) 6 R 67 HL
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duggan v Coelho [2009] WASC 372
Einfeld v The Queen [2010] NSWCCA 87
Etrelezis v The Queen [2001] WASCA 327
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Giles v Barnes (1967) SASR 174
House v The King [1936] HCA 40; 55 CLR 499
Inkson v R (1996) 6 Tas R 116; (1996) 88 A Crim R 334
Janerka v Bethell [2002] WASCA 198
Johnson v Miller [1937] HCA 77; 59 CLR 467
Kenny v The Queen [2010] NSWCCA 6
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Krijestorac v The State of WA [2010] WASC 35
Long v Mayger [2004] WASCA 41
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McKenna v The Queen (1992) 7 WAR 455, 465; (1992) 63 A Crim R 452
Nguyen v Lassau [2010] WASC 240
O'Callaghan v Ward [2010] WASC 246
Pearson v Newton [2010] WASC 98
R v Bailey [2009] QCA 251

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 Scolaro v Shephard [No 2]

Details

AGLC: Scolaro v Shephard [No 2] [2010] WASC 271
Case: [2010] WASC 271
Decision Date: 8 OCTOBER 2010

CaseChat Overview and Summary

The appellant, Mr Scolaro, was convicted by the Magistrates' Court of Victoria of assault occasioning bodily harm, and the respondent, Mr Shephard, appealed against the conviction and sentence. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, which consisted of Byrne, Beach and Nettle JJA. The appeal against conviction hinged on whether the magistrate had convicted on a factual basis not relied upon by the prosecution, whether the verdict was against the evidence or weight of the evidence, whether the magistrate had made errors of fact, and whether there was a substantial miscarriage of justice. The appeal against sentence considered whether the sentence was manifestly excessive, whether the magistrate had erred by finding the attack unprovoked, and the relevance of the prevalence of such offences to the sentencing process.

The Court of Appeal held that the magistrate had not convicted on a basis not relied upon by the prosecution, and that the verdict was not against the evidence or weight of the evidence. The court found that the magistrate had not made any errors of fact, and that there was no substantial miscarriage of justice. The Court of Appeal also held that the sentence was not manifestly excessive, and that the magistrate had not erred by finding the attack unprovoked. The court noted that the prevalence of such offences was relevant to the sentencing process, but that it was not the sole consideration. The court also considered the public humiliation arising from the media treatment of the offender, and the relevance of a suspended sentence.

The Court of Appeal allowed the appeal against sentence and substituted a sentence of imprisonment for six months, with a non-parole period of three months, to be served wholly on probation, with conditions. The Court of Appeal also allowed the appeal against conviction and quashed the conviction, ordering a new trial. The Court of Appeal noted that the starting point for consideration of sentence was the maximum penalty for the offence, and that the appellate cases provided guidance on the relevance of community expectations in the sentencing process. The court also noted that the media treatment of the offender could have an impact on the sentencing process, but that it was not the sole consideration.

Orders