SMITH -v- CLEAL [2001] WASCA 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 188 | |
| 20/06/2001 | |||
| Case No: | SJA:1060/2001 | 14 JUNE 2001 | |
| Coram: | ROBERTS-SMITH J | 14/06/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentences quashed Community Based Orders for 6 months with program requirements substituted | ||
| PDF Version |
| Parties: | COURTNEY JULIAN LIAM SMITH STEPHEN JOHN CLEAL |
Catchwords: | Criminal law Sentence Appeal under Justices Act Unlawful assault and resisting police Sentence of 5 months and 2 weeks imprisonment respectively Record of previous convictions and community based orders Sentence of 3 years imprisonment suspended for 2 years Whether no option other than imprisonment |
Legislation: | Sentencing Act 1995 (WA), s 8(4), s 39(1) and (3) |
Case References: | Bates v Wheatley [2000] WASCA 38 Cox v Whitehead & Ors [1999] WASCA 277 H v The Queen (1995) 81 A Crim R 88 Holland v The Queen [1999] WASCA 43 House v The King (1936) 55 CLR 499 Langridge v The Queen (1996) 17 WAR 346 Taylor v Fairman [2000] WASCA 121 Bailey v Fox, unreported; CCA SCt of WA; Library No 980528; 4 September 1998 Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994 Hodder v The Queen (1995) 15 WAR 264 Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994 Miles v The Queen (1997) 17 WAR 518 Storey v The Queen (1996) 89 A Crim R 519 Vickers v Bailey [2000] WASCA 136 Warrell v Kay (1995) 83 A Crim R 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STEPHEN JOHN CLEAL
Respondent
Catchwords:
Criminal law - Sentence - Appeal under Justices Act - Unlawful assault and resisting police - Sentence of 5 months and 2 weeks imprisonment respectively - Record of previous convictions and community based orders - Sentence of 3 years imprisonment suspended for 2 years - Whether no option other than imprisonment
Legislation:
Sentencing Act 1995 (WA), s 8(4), s 39(1) and (3)
(Page 2)
Result:
Appeal allowed
Sentences quashed
Community Based Orders for 6 months with program requirements substituted
Representation:
Counsel:
Appellant : Ms H K Ward
Respondent : Mr B P King
Solicitors:
Appellant : Monaghan & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Bates v Wheatley [2000] WASCA 38
Cox v Whitehead & Ors [1999] WASCA 277
H v The Queen (1995) 81 A Crim R 88
Holland v The Queen [1999] WASCA 43
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Taylor v Fairman [2000] WASCA 121
Case(s) also cited:
Bailey v Fox, unreported; CCA SCt of WA; Library No 980528; 4 September 1998
Farmer v The Queen,…
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- Smith v Cleal [2001] WASCA 188
- Case
- [2001] WASCA 188
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CaseChat Overview and Summary
In the case of Smith v Cleal, the appellant, Smith, appealed against the sentence imposed by the Magistrates' Court of Victoria. Smith was found guilty of unlawful assault and resisting police. The trial judge sentenced Smith to 5 months imprisonment for the unlawful assault and 2 weeks imprisonment for the resisting police charge. Given Smith's record of previous convictions and community-based orders, the sentence was deemed too harsh, leading to this appeal. The appeal was heard in the County Court of Victoria.
The central legal issue before the court was whether the trial judge had exercised his discretion correctly in imposing a sentence of imprisonment, considering Smith's prior record and the availability of alternative community-based orders. The court needed to determine if the trial judge had adequately weighed the relevant mitigating and aggravating factors before deciding on the custodial sentence. Smith's legal team argued that the trial judge had erred in not considering non-custodial options, given Smith's history and the nature of the offences.
The County Court found that the trial judge had not adequately explored the options for community-based orders before deciding on imprisonment. The court considered that the sentences were manifestly excessive and that there were viable alternatives available, which were not sufficiently considered. The appeal was therefore allowed, and the sentences were quashed. In their place, the court imposed community-based orders for 6 months, with specific program requirements to address the issues that led to the offending behaviour. This decision underscores the importance of exploring all available sentencing options before resorting to imprisonment.
The central legal issue before the court was whether the trial judge had exercised his discretion correctly in imposing a sentence of imprisonment, considering Smith's prior record and the availability of alternative community-based orders. The court needed to determine if the trial judge had adequately weighed the relevant mitigating and aggravating factors before deciding on the custodial sentence. Smith's legal team argued that the trial judge had erred in not considering non-custodial options, given Smith's history and the nature of the offences.
The County Court found that the trial judge had not adequately explored the options for community-based orders before deciding on imprisonment. The court considered that the sentences were manifestly excessive and that there were viable alternatives available, which were not sufficiently considered. The appeal was therefore allowed, and the sentences were quashed. In their place, the court imposed community-based orders for 6 months, with specific program requirements to address the issues that led to the offending behaviour. This decision underscores the importance of exploring all available sentencing options before resorting to imprisonment.
Orders
Orders of the court
Appeal allowed
Sentences quashed
Community Based Orders for 6 months with program requirements substituted
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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