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
The State of Western Australia v Camilleri [2008] WASCA 217

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.…

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 Stoker v Raitt

Details

AGLC: Stoker v Raitt [2009] WASC 40
Case: [2009] WASC 40
Decision Date: 25 February 2009 (Date of publication. Decision date was 5 Febraury 2009)

CaseChat Overview and Summary

In the case of Stoker v Raitt, the appellant, Stoker, was convicted of assault occasioning bodily harm. He appealed against his sentence of imprisonment, arguing that it ought to have been suspended. The District Court of Western Australia had sentenced Stoker to nine months' imprisonment, but the Court of Appeal found that the sentence was based on a more serious view of the facts than was warranted. The appeal turned on whether the sentence imposed was appropriate in light of the mitigating factors presented.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Stoker v Raitt [2009] WASC 40

Most Recent Citation

Pearson v Newton [2010] WASC 98

Cases citing this decision · 4 of 4 shown

Clarke v The State of Western Australia [No 2]
[2013] WASCA 197 Para 6

…[2011] WASCA 26; (2011) 206 A Crim R 368; Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264; Pearson v Newton [2010] WASC 98; Stoker v Raitt [2009] WASC 40; Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398; Shoard v Van der Zanden [2013] WASC 163; and Gray‑Herewini v Lee [2013] WASC 200.…
Gray-Herewini v Lee
[2013] WASC 200 Para 7

…where offences of assault occasioning bodily harm had attracted suspended terms of imprisonment: see Flanagan v White [2007] WASC 284; Stoker v Raitt [2009] WASC 40; Pearson v Newton [2010] WASC 98. However the fact that a suspended sentence of imprisonment has been found to be appropriate in other cases does not…
Morgan v Kazandzis
[2010] WASC 377 Para 2

…ave been imposed for the offence of assault occasioning bodily harm, particularly in the case of a young offender or a first offender: Stoker v Raitt [2009] WASC 40 [33] (Jenkins J).…
Pearson v Newton
[2010] WASC 98 Para 5

…arm. Ipp J made this observation in Kilner v The Queen [1999] WASCA 189 [21], and much the same was said more recently by Jenkins J in Stoker v Raitt [2009] WASC 40 [33]. As her Honour observed, sometimes immediate imprisonment is imposed and sometimes not.…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

The State of Western Australia v Gibbs
[2009] WASCA 7 Para 27

…In Gibbs v The Queen [2009] WASCA 7 [54] ‑ [55] Steytler P, McClure J agreeing, said: …it is necessary to bear in mind that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale [58], Kirby J sai…
The State of Western Australia v Camilleri
[2008] WASCA 217 Para 3

…hich reviewed a number of cases involving appeals against sentence for assault occasioning bodily harm and The State of Western Australia v Camilleri [2008] WASCA 217. Whilst there is no tariff for an offence of this type, there are a number of cases which demonstrate that a sentence of 9 months' imprisonment is we…
Mourish v The State of Western Australia
[2006] WASCA 257 Para 3

…erved with respect to the crime, the appellant relied on a number of cases. To these I would add the case of Mourish v the State of Western Australia [2006] WASCA 257, which reviewed a number of cases involving appeals against sentence for assault occasioning bodily harm and The State of Western Australia v Camille…
Markarian v The Queen
[2005] HCA 25 Para 26

…In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ said: As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well‑known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King , itself…
Long v Mayger
[2004] WASCA 41 Para 12

…rst offender, to the question of whether that person is likely to benefit from an exercise of clemency to the ultimate benefit of the general public. Long v Mayger (2004) 142 A Crim R 289 [28] and the cases therein cited. Whilst the appellant was not strictly speaking a first offender, he had no relevant prior convicti…
Chan v The Queen
[2004] HCATrans 68 Para 28

…In Chan v The Queen (1989) 38 A Crim R 337, 342 Malcolm CJ said: To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal cond…
Postiglione v the Queen
[1997] HCA 26 Para 11

…penalty and the second-most serious penalty which can be imposed by the courts, it is my view that the magistrate erred in this case: R v Liddington (1997) 18 WAR 394.…
House v R
[1936] HCA 40 Para 25

…h or impose a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: House v The Queen (1936) 55 CLR 499, 504 ‑ 505.…
[1999] HCA 29
[1999] HCA 29 Para 25

…retion. The principles upon which an appellate court must deal with an appeal against sentence were restated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671. It is not sufficient that an Appellate Court may take a different approach or impose a different sentence. It must be demon…

Legislation cited in this decision · 1

Sentencing Act 2004 (WA)
1 mention (from Para 29)