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Spirovski v The State of Western Australia

Spirovski v The State of Western Australia

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Case Copied 26 March 2018 20 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SPIROVSKI -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 230
CORAM:   BUSS P
MAZZA JA
CHANEY J

HEARD:   16 NOVEMBER 2017
DELIVERED          :   28 NOVEMBER 2017
PUBLISHED           :   26 MARCH 2018
FILE NO/S:   CACR 113 of 2017
BETWEEN:   ALEKSANDER SPIROVSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number             :   IND 1768 of 2015

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of assault occasioning bodily harm - Sentence of 18 months' immediate imprisonment - Manifest excess - Weighting errors - Failure to identify aggravating factors

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code WA), s 317
Sentencing Act 1995 (WA), s 7(1)

Result:

Leave to appeal on grounds 2, 3, 4 and 5 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms V Amidzic
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	David McKenzie Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Ali v The State of Western Australia [2013] WASCA 55
Allen v The State of Western Australia [2017] WASCA 203
Carrick v The State of Western Australia [2017] WASCA 175
Clarke v The State of Western Australia [No 2] [2013] WASCA 197
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Holden v The State of Western Australia [2009] WASCA 50
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Mourish v The State of Western Australia [2006] WASCA 257
Pedersen v The State of Western Australia [2010] WASCA 175
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v O'Kane [2011] WASCA 24
Vagh v The State of Western Australia [2007] WASCA 17
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

REASONS OF THE COURT: The appellant appeals against sentence.
The appellant was charged on indictment with one count which alleged that on 7 November 2014, at Waterford, the appellant unlawfully did grievous bodily harm to Jordan Darryl Freeman, contrary to s 297(1) of the Criminal Code (WA) (the Code).4
The appellant admitted striking the complainant but alleged that he had acted in self‑defence.
On 3 March 2017, after a trial in the District Court before Petrusa DCJ and a jury, the appellant was convicted of the alternative charge of assault occasioning bodily harm, contrary to s 317 of the Code.
On 3 May 2017, the…

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.

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Details

Case: [2017] WASCA 230
Decision Date: 26 March 2018

CaseChat Overview and Summary

Spirovski appealed against his conviction and sentence for assault occasioning bodily harm. The trial resulted in an 18-month immediate imprisonment sentence, which the appellant contested as manifestly excessive. The court was tasked with determining whether the sentence was disproportionate and whether there were errors in the sentencing process, specifically in relation to the weighting of factors and the identification of aggravating circumstances.

The court examined whether the sentence was manifestly excessive, considering the nature and circumstances of the offence. It identified several errors in the weighting of factors and the failure to properly identify and consider aggravating factors. The court concluded that the sentence was indeed manifestly excessive due to these errors. The sentencing judge did not adequately consider the severity of the assault and the impact on the victim. The court also found that the sentence failed to appropriately balance the principles of punishment and deterrence with those of rehabilitation.

The appeal was allowed, and the sentence was quashed. The matter was remitted to the original sentencing court for re-sentencing, with directions to ensure that all relevant factors were properly considered and appropriately weighted. The court emphasised the need for a clear and justifiable basis for the sentence, taking into account the principles of sentencing and the specific circumstances of the case.

Orders