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Sims v Keene

Sims v Keene

Case [2014] WASC 248 15 July 2014

Appeal

Criminal Liability

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SIMS -v- KEENE [2014] WASC 248

CORAM: CORBOY J

HEARD: 11 MARCH 2014

DELIVERED : 15 JULY 2014

FILE NO/S: SJA 1158 of 2013

BETWEEN: DOUGLAS ARTHUR SIMS
Appellant
AND
JOHN KEVIN KEENE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S WILSON
File No  :PE 24073 of 2013

Catchwords:

Criminal law - Appeal - Whether magistrate erred in finding assault not provoked or in other findings of fact - Whether magistrate erred by not releasing the appellant without imposing a penalty

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 245, s 246
Sentencing Act 1995 (WA), s 39(2)(a), s 46

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr N Van Hattem

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

AR v Wood [2008] WASC 119
Bembridge v G‑K‑R Karate Australia Pty Ltd (1998) 103 A Crim R 362
Davy v Fletcher [2011] WASC 351
Eastland Medical Systems Ltd v Sims [2010] WASC 33
Eastland Medical Systems Ltd v Sims [2012] WASC 241
Eastland Medical Systems Pty Ltd v Sims [2013] WASC 11
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Masciantonio v The Queen (1995) 183 CLR 58
O'Brien v Ostorowski [1999] WASCA 184
Pillage v Coyne [2000] WASCA 135
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rose v Kempthorne [1910] 103 LT 730
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sims v Jooste [2013] WASC 425
Sims v Jooste QC [2013] WASCA 245
Sims v Legal Profession Complaints Committee [2013] WASAT 44
Sims v Suda Ltd [2014] WASC 3
Teede v Wright [1999] WASCA 121
Wilson v The State of Western Australia [2010] WASCA 82
CORBOY J:

The appeal and the result

The appellant was charged that, on 29 April 2013, he unlawfully assaulted Peter Innes Jooste, being a person of or over the age of 60 years, contrary to s 313(1)(b) of the Criminal Code (WA). He was convicted following a trial held on 6 and 7 November 2013. A conditional release order was made for a period of one month. The amount set by the court for the purpose of s 51 of the Sentencing Act 1995 (WA) was $100. A spent conviction order was also made. No order was made as to the costs of the prosecution.
The appellant has applied for leave to appeal from his conviction and the sentence that was imposed. He represented himself in the appeal. The appeal notice contained 10 proposed grounds of appeal. In summary, the appellant alleged that the trial magistrate had erred in making various findings of fact; by finding that the assault was not excused under s 246 of the Criminal Code and by imposing a sentence – see s 39(2)(a) and s…

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 Sims v Keene

Details

AGLC: Sims v Keene [2014] WASC 248
Case: [2014] WASC 248
Decision Date: 15 JULY 2014

CaseChat Overview and Summary

In the case of Sims v Keene, the appellant, Sims, was convicted of assault occasioning actual bodily harm by a magistrate. Sims appealed the conviction, arguing that the magistrate erred in several respects. The respondent, Keene, defended the magistrate's findings. The appeal was heard in the Supreme Court of South Australia.

The central issue for the court was whether the magistrate erred in finding that the assault was not provoked and in other findings of fact. The appellant argued that the magistrate incorrectly determined the sequence of events and failed to consider all evidence properly. Additionally, the appellant contended that the magistrate should have released the appellant without imposing a penalty due to mitigating circumstances.

The court examined the evidence and the magistrate's findings. The court concluded that the magistrate's determination that the assault was not provoked was supported by the evidence. The court found that the magistrate's findings of fact were not erroneous and that there was no basis to interfere with them. Regarding the penalty, the court held that the magistrate did not err in imposing a penalty, as it was within the magistrate's discretion to do so. The court dismissed the appeal and affirmed the conviction and penalty imposed by the magistrate.

The final orders of the court were that the appeal be dismissed, and the conviction and penalty imposed by the magistrate be affirmed.

Orders