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Stack v Joye

Stack v Joye

Case [2021] WASC 322 22 September 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   STACK -v- JOYE [2021] WASC 322
CORAM:   ARCHER J
HEARD:   26 AUGUST 2021
DELIVERED          :   26 AUGUST 2021
PUBLISHED           :   22 SEPTEMBER 2021
FILE NO/S:   SJA 1036 of 2021
BETWEEN:   ROBERT ARTHUR STACK
Appellant
AND
ELI JOYE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B MAHON
File Number            :   AR 13804/2020

Catchwords:

Appeal against imposition of part of suspend sentence for breach - Whether wrong test applied - Whether no miscarriage in any event

Legislation:

Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant	:	W Yoo
Respondent	:	NTL John

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	State Solicitor's Office

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

Baini v R [2012] HCA 59; (2012) 246 CLR 469
Crocker v Vinicombe [2019] WASC 416
Dillon v Western Australia [2020] WASCA 24
Dragon v Western Australia [2008] WASCA 252
Gaskell v The State of Western Australia [2018] WASCA 8
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Neach v Hobbs [2021] WASC 135
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139

ARCHER J:

(This judgment was delivered extemporaneously on 26 August 2021 and has been edited to correct matters of grammar, include complete references, and add headings.)

Overview

The appellant seeks leave to appeal against an order that he serve part of a suspended term of imprisonment that had been imposed on him.
The appellant alleges the learned magistrate made an error of law in considering he was bound to make an order that at least part of the suspended term be served unless he was positively satisfied it would be unjust to do so.
The respondent agrees that, if the magistrate had done that, it would have been an error of law. However, the respondent contends that the magistrate did not do that. In the alternative, the respondent contends that no miscarriage of justice occurred because no lesser penalty would be imposed if the appellant was resentenced.
The application for leave to appeal was ordered to be heard together with the appeal.
What follows are my reasons for concluding I should grant leave to appeal and allow the appeal.

Background

On 12 January 2021, the appellant pleaded guilty to a charge of aggravated unlawful assault. The assault was aggravated because the appellant was in a family domestic violence relationship with the victim and she was over the age of 60 years. In fact, the victim was the appellant’s 74-year-old mother.
The facts of the offence were that the appellant and his mother were having an argument. The appellant was yelling loudly and swearing. He had…

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 Stack v Joye

Details

AGLC: Stack v Joye [2021] WASC 322
Case: [2021] WASC 322
Decision Date: 22 SEPTEMBER 2021

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of Stack v Joye involved an appeal by the plaintiff, Stack, against the decision of the Magistrates Court to impose part of a suspended sentence following a breach of a good behaviour bond. The defendant, Joye, had been found guilty of breaching the terms of a good behaviour bond and the Magistrate imposed a sentence of one month imprisonment, to be served after a six-month suspension. Stack contended that the Magistrate had applied an incorrect test when imposing the sentence, which led to a miscarriage of justice.

The central legal issue before the court was whether the Magistrate had applied the correct legal test when imposing the sentence for the breach of the good behaviour bond. Stack argued that the Magistrate had not applied the correct principles when imposing the sentence, and that this led to an unjust outcome. The court needed to determine whether the Magistrate had applied the wrong test and, if so, whether this resulted in a miscarriage of justice.

The court found that while the Magistrate had applied an incorrect test when imposing the sentence, this did not result in a miscarriage of justice. The court held that the error in the application of the test did not affect the outcome of the sentence imposed, as the sentence was within the appropriate range. The court found that the sentence was not excessive or disproportionate, and that there was no miscarriage of justice in the imposition of the sentence. The appeal was therefore dismissed.

The court did not make any orders for costs or any other relief. The defendant, Joye, was required to serve one month imprisonment, to be served after a six-month suspension.

Orders