JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SELLENGER -v- TURNER [2021] WASC 308
CORAM: STRK J
HEARD: 7 SEPTEMBER 2021
DELIVERED : 7 SEPTEMBER 2021
PUBLISHED : 7 SEPTEMBER 2021
FILE NO/S: SJA 1049 of 2021
BETWEEN: LUKE JOHN SELLENGER
Appellant
AND
BARRY TURNER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B TYERS
File Number : BU 1005 of 2021, BU 1006 of 2021, BU 1007 of 2021
Catchwords:
Sentencing - Breaches of police orders - Stalking - Whether the total effective sentence imposed breached the first limb of the totality principle - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Application for extension of time to appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | N Sinton |
| Respondent | : | J Berry |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AD v Western Australia [No 2] [2007] WASCA 207
Babaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Clarke v The State of Western Australia [2018] WASCA 190
Dennis v Laternier [No 2] [2017] WASC 5
Kabambi v The State of Western Australia [2019] WASCA 44
Lancaster v The Queen [1989] WAR 83
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Miller v The State of Western Australia [2021] WASCA 138
Musgrove v Millard [2012] WASC 60
Pillage v Coyne [2000] WASCA 135; (2000) 1113 A Crim R 27
Robertson v The State of Western Australia [2009] WASCA 83
Rogers v Hitchcock [2015] WASC 120
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smartt v Sloane [2019] WASC 35
STRK J:
(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)
Introduction
On 26 March 2021, the appellant pleaded guilty to, and was convicted of, three offences:
(a)two counts of breaching a police order committed on 24 February 2021 and 25 February 2021 respectively, contrary to the Restraining Orders Act 1997 (WA) s 61(2a) (BU 1005 and 1006 of 2021); and
(b)one count of pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person (stalking), committed between 23 February 2021 and 25 February 2021 contrary to the Criminal Code (WA) s 338E(2) (BU 1007 of 2021).
On 28 May 2021, the appellant was sentenced by…
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