JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: STOKER -v- RAITT [2009] WASC 40
CORAM: JENKINS J
HEARD: 28 JANUARY & 5 FEBRUARY 2009
DELIVERED : 5 FEBRUARY 2009
PUBLISHED : 25 FEBRUARY 2009
FILE NO/S: SJA 1082 of 2008
BETWEEN: DAVID PHILIP STOKER
Appellant
AND
AMANDA JANE RAITT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT ROCKINGHAM
Coram :MAGISTRATE R B LAWRENCE
File No :RO 7477 of 2008
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence of imprisonment ought to have been suspended - Offender sentenced on more serious view of the facts - Matters going to mitigate sentence - Turns on own facts
Legislation:
Sentencing Act 2004 (WA)
Result:
Appeal allowed
Sentence of 9 months' imprisonment set aside
Appellant resentenced to 7 1/2 months' imprisonment, suspended for 12 months
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms R J Haylock
Solicitors:
Appellant: Cockburn Central Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Gibbs v The Queen [2009] WASCA 7
House v The Queen (1936) 55 CLR 499
Long v Mayger (2004) 142 A Crim R 289
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mourish v the State of Western Australia [2006] WASCA 257
R v Liddington (1997) 18 WAR 394
R v Morgan (1993) 70 A Crim R 368
JENKINS J: The appellant appeals from the sentence imposed on him by a magistrate sitting in the Magistrate's Court at Rockingham on 5 September 2008 for the offence of assault occasioning bodily harm. The magistrate sentenced the appellant to 9 months' imprisonment. These are my reasons for allowing the appellant's appeal.
On 28 October 2008, McKechnie J granted the appellant leave to appeal the sentence on two grounds. At the hearing of the appeal, ground 1 was abandoned by the appellant's counsel. The sole ground argued by the appellant's counsel states:
The sentence imposed was manifestly excessive when reference is had to comparative cases and in all the circumstances, namely;
Particulars:
(a)the plea of guilty;
(b)the Appellant's age and antecedents; and
(c)the circumstances of the offending.
On 1 August 2008 the appellant pleaded guilty to the charge which alleged that on 18 March 2009 at Rockingham he unlawfully assaulted Goran Jasnic and thereby did him bodily harm. The appellant was remanded on bail to appear for sentence on 22 August 2008. The purpose of the remand was so that the prosecution could produce the surveillance footage from the nightclub where the offence occurred and so that an oral pre-sentence report could be obtained.
The matter was adjourned on two further occasions until the appellant appeared before a magistrate on 5 September 2008. On that date the appellant again pleaded guilty to the charge.…
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- AGLC
- Stoker v Raitt [2009] WASC 40
- Case
- [2009] WASC 40
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred around whether the trial judge's sentence was appropriate given the mitigating factors. The Court of Appeal needed to determine whether the sentence imposed by the District Court was excessive and whether it should have been suspended. The appeal also examined whether the trial judge had given sufficient consideration to the mitigating factors that were presented on behalf of the appellant.
In its decision, the Court of Appeal found that the District Court had indeed taken a more serious view of the facts than was justified. The Court noted that the trial judge had given insufficient weight to the mitigating factors, which included the appellant's otherwise good character, his remorse, and his cooperation with authorities. The Court of Appeal concluded that the appropriate sentence in this case was seven and a half months' imprisonment, suspended for 12 months. This decision reflected a more balanced consideration of the mitigating factors and the seriousness of the offence.
Orders
Orders of the court
Appeal allowed
Sentence of 9 months' imprisonment set aside
Appellant resentenced to 7 1/2 months' imprisonment, suspended for 12 months
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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