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Sellenger v Turner

Sellenger v Turner

Case [2021] WASC 308 7 September 2021

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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
Trajkoski v The State of Western Australia [2018] WASCA 176
Wimbridge v The State of Western Australia [2009] WASCA 196

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…

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 Sellenger v Turner

Details

AGLC: Sellenger v Turner [2021] WASC 308
Case: [2021] WASC 308
Decision Date

CaseChat Overview and Summary

Sellenger v Turner involved an appeal against the sentence imposed by the Magistrates Court of Western Australia on the appellant, Luke John Sellenger. The appellant was convicted of three offences: two counts of breaching a police order, and one count of stalking. The appellant was sentenced to a total effective sentence of 14 months' imprisonment. The appellant appealed on the ground that the total sentence imposed infringed the first limb of the totality principle. The court granted the appellant's application for an extension of time to appeal and his application for leave to appeal. However, the appeal was dismissed. The court found that the total effective sentence did not infringe the first limb of the totality principle and was not unreasonable or plainly unjust.

Orders