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Stockley v Bailey

Stockley v Bailey

Case [2020] WASC 193 8 June 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   STOCKLEY -v- BAILEY [2020] WASC 193
CORAM:   HILL J
HEARD:   28 MAY 2020
DELIVERED          :   8 JUNE 2020
FILE NO/S:   SJA 1019 of 2020
BETWEEN:   KIMBERLEY MICHAEL STOCKLEY
Appellant
AND
JASON BAILEY
Respondent

ON APPEAL FROM:
For File No:   SJA 1019 of 2020
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number            :   RO 26153/19, RO 26268/19

Catchwords:

Criminal law - Appeal against sentence - Breaches of family violence restraining order - Whether aggregate sentence manifestly excessive - Whether sentence offends totality principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA), s 61(1), s 61A
Sentencing Act 1995 (WA), s 9AA

Result:

Application for leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T E Ledger

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chan v The Queen (1989) 38 A Crim R 337
Dennis v Lanternier [No 2] [2017] WASC 5
Dillon v The State of Western Australia [2020] WASCA 24
Forward v Bower [2007] WASC 205
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Howell v Davies [2019] WASC 220
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Roffey v The State of Western Australia [2007] WASCA 246
Rogers v Hitchcock [2015] WASC 120
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

HILL J:

On 14 February 2020, the appellant was sentenced to a total effective sentence of 7 months' imprisonment following his conviction after pleas of guilty to six offences of breaching a family violence restraining order (FVRO) contrary to s 61(1) of the Restraining Orders Act1997 (WA) (Act) and one offence of possessing a controlled weapon contrary to s 7(1) of the Weapons Act 1999 (WA).
Three days before this, on 11 February 2020, the appellant appeared in the District Court and was sentenced, following a plea of guilty, by Sweeney DCJ to 3 years' imprisonment in relation to one charge of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), and one charge of deprivation of liberty contrary to s 333 of the Code. These offences occurred at the same time as one of the FVRO offences and the possession of the controlled weapon and the day before another two of the FVRO offences.
The appellant seeks leave to appeal on the grounds that:
(a)the total sentence of 7 months' imprisonment is manifestly excessive;
(b)the total sentence of 3 years, 7 months is disproportionate to the overall criminality involved and the total sentence is crushing.
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.

Continue reading Stockley v Bailey

Details

AGLC: Stockley v Bailey [2020] WASC 193
Case: [2020] WASC 193
Decision Date: 8 JUNE 2020

CaseChat Overview and Summary

In Stockley v Bailey, the appellant, Stockley, appealed against his sentence for multiple breaches of a family violence restraining order. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary issue before the court was whether the aggregate sentence imposed on Stockley for his breaches was manifestly excessive and whether it contravened the principle of totality in sentencing.

The court considered whether the cumulative effect of the sentences imposed for multiple breaches of the restraining order was manifestly excessive. This involved examining whether the total punishment imposed on Stockley was disproportionate to the gravity of the offences. The court also assessed if the sentence adhered to the principle of totality, which requires that the cumulative punishment for multiple offences should not be greater than the punishment that would have been imposed for the most serious offence alone. The court took into account the nature and frequency of the breaches, the need for deterrence and protection of the victim, and the overall impact on Stockley's criminal history.

The Court of Appeal found that the aggregate sentence was not manifestly excessive. It held that the cumulative effect of the sentences did not result in a manifestly excessive punishment and that the principle of totality was not violated. The court emphasised the importance of deterrence and the protection of the victim in imposing the sentence. The appeal was therefore dismissed, and the original sentence was upheld.

The court ordered that the appeal be dismissed and that the appellant abide by the original sentence imposed by the lower court.

Orders