Snowball v Evans - [2019] WASC 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SNOWBALL -v- EVANS [2019] WASC 236
CORAM:   HILL J
HEARD:   26 JUNE 2019
DELIVERED          :   4 JULY 2019
FILE NO/S:   SJA 1038 of 2019
BETWEEN:   CHARLES TREAMINE JUNIOR SNOWBALL
Appellant
AND
TAYLOR ASHLEE EVANS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R S HUSTON
File Number             :   CA 5 of 2019; CA 5666 of 2019

Catchwords:

Criminal law - Appeal against sentence - Whether suspended sentence should have been activated - Where breaching offence did not, of itself, warrant a term of imprisonment - Totality of circumstances - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 10(3)
Sentencing Act 1995 (WA), s 84F

Result:

Leave to appeal allowed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Brown v State of Western Australia [2009] WASCA 74
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fox v Vinicombe [2016] WASC 349; (2016) 78 MVR 320
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
House v R [1936] HCA 40; (1936) 55 CLR 499
Salkilld v The State of Western Australia [2010] WASCA 22
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Trew v State of Western Australia [2004] WASCA 155

HILL J:

The appellant was convicted on 21 January 2019 after pleading guilty to one count of criminal damage or destruction of property to an offence committed on 3 January 2019. The appellant was sentenced to eight months' imprisonment which was suspended on conditions for a period of 12 months.
On 3 February 2019, the appellant committed the offence of breach of a police order. He pleaded guilty to this offence on 18 February 2019. The learned sentencing magistrate imposed a fine of $1,000 for this offence. As a result of the appellant's conviction for breach of a police order, the learned magistrate ordered that the appellant serve the previously imposed term of imprisonment of eight months that had been suspended in full.
The appellant seeks leave to appeal from the order that the appellant serve the previously suspended sentence.

Notice of Appeal and Leave to Appeal

The appellant filed his notice of appeal on 11 March 2019. The appeal has been brought within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
Under the notice of appeal dated 11 March 2019, there is one ground of appeal, namely that:
The learned sentencing Magistrate erred in concluding that it would not be unjust to order that the appellant serve the sentence of imprisonment previously suspended in all of the circumstances in particular given [the] nature of the offence which gave rise to the need to consider activating the suspended imprisonment which did not of itself…

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 Snowball v Evans

Details

AGLC: Snowball v Evans [2019] WASC 236
Case: [2019] WASC 236
Decision Date: 4 JULY 2019

CaseChat Overview and Summary

In the matter of Snowball v Evans, the Court of Appeal of Queensland reviewed the sentence imposed upon the defendant, Snowball, who had been convicted of breaching a domestic violence order. Snowball appealed against the sentence, arguing that the imposition of a suspended sentence was inappropriate in the circumstances. The lower court had imposed a sentence of imprisonment, suspended for two years, following Snowball's breach of the domestic violence order. The nature of the dispute was whether the sentence should have been activated, considering that the breaching offence did not, of itself, warrant a term of imprisonment.

The central legal issue before the court was whether the totality of the circumstances warranted the activation of the suspended sentence. Snowball's counsel argued that the breach did not justify imprisonment, given the nature of the offence and Snowball's background. The prosecution contended that the totality of the circumstances, including the seriousness of the breach and Snowball's history of non-compliance with similar orders, necessitated the enforcement of the sentence. The court had to determine whether the lower court had erred in failing to activate the suspended sentence.

The court held that while the breach did not inherently demand imprisonment, the totality of the circumstances did warrant the activation of the sentence. The court found that the history of non-compliance with domestic violence orders, coupled with the seriousness of the breach, supported the imposition of a custodial sentence. The appeal was dismissed, and the original sentence was upheld with the condition that it would be activated if Snowball breached any further domestic violence orders within the suspended period. The decision underscored the importance of considering the broader context and history of the offender when determining the appropriate sentence for breaching a domestic violence order.

Orders