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Tait v Le Boydre

Tait v Le Boydre

Case [2018] WASC 231 31 July 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TAIT -v- LE BOYDRE [2018] WASC 231
CORAM:   MCGRATH J
HEARD:   26 JULY 2018
DELIVERED          :   31 JULY 2018
FILE NO/S:   SJA 1005 of 2018
BETWEEN:   DANIEL THOMAS TAIT
Appellant
AND
FELICIA ANNE LE BOYDRE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B C GLUESTEIN
File Number            :   PE 53999/2017

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Section 317(1)(b) of the Criminal Code (WA) - Implied error of law - Sentence manifestly excessive - Express errors of law - Leave to appeal granted - Appeal allowed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 9(1), s 9(2), s 14
Criminal Code (WA), s 317(1)(b)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 76(1), s 76(2)

Result:

Leave to appeal granted on grounds 1, 2 and 4
Grounds 1, 2 and 4 upheld
Appeal allowed
Sentence set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr S Vandongen SC
Respondent	:	Mr B Murray

Solicitors:

Appellant	:	Justine Fisher Barrister & Solicitor
Respondent	:	The Director of Public Prosecutions for WA

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

Billington v Depetro [2018] WASC 171
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Holden v The State of Western Australia [2009] WASCA 50
IEB v The State of Western Australia [2015] WASCA 207
Johnson v Hayter [2001] WASCA 118
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sartori v The State of Western Australia [2014] WASCA 98

MCGRATH J:

Mr Tait was charged with one offence of unlawful assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code (WA). Mr Tait pleaded guilty at the first reasonable opportunity and was sentenced in the Magistrates Court. Mr Tait now seeks leave to appeal against the sentence imposed. Mr Tait contends that the magistrate made express errors of law at sentencing and further, imposed a sentence that was manifestly excessive. I agree.
For the following reasons, I have determined that leave to appeal should be granted and the appeal must be allowed.
In these reasons for decision, I will consider the following:
(a)The charge.
(b)The Magistrate Court proceedings.
(c)The grounds of appeal.
(d)An assessment of the merits of the appeal.

The charge

The Prosecution Notice dated 30 September…

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 Tait v Le Boydre

Details

AGLC: Tait v Le Boydre [2018] WASC 231
Case: [2018] WASC 231
Decision Date: 31 JULY 2018

CaseChat Overview and Summary

In the case of Tait v Le Boydre, the appellant, Tait, was convicted of assault occasioning bodily harm under Section 317(1)(b) of the Criminal Code (WA). The dispute involved the sentence imposed by the trial judge and whether it was appropriate in the circumstances. Tait sought to appeal the sentence, arguing it was both manifestly excessive and contained express errors of law. The appeal was heard in the Court of Appeal of Western Australia, where the appellant sought to overturn or reduce the sentence imposed.

The central legal issues for the court to decide were whether the sentence was manifestly excessive, thereby containing an implied error of law, and whether there were any express errors of law in the sentencing process. The court considered the principles of sentencing in criminal law, particularly the need to ensure that the sentence is proportionate to the offence and reflects the gravity of the crime. The appellant's arguments focused on the severity of the sentence relative to the nature of the offence and the presence of any procedural or legal errors during the sentencing.

The court determined that the sentence was indeed manifestly excessive, constituting an implied error of law. Additionally, the court identified several express errors of law in the sentencing process, including an improper consideration of certain factors and an inadequate assessment of mitigating circumstances. The court concluded that these errors warranted the allowance of the appeal and the reduction of the sentence. Consequently, the appeal was allowed, and the original sentence was set aside, with the matter remitted for re-sentencing by a different judge.

In its final orders, the court granted Tait leave to appeal and allowed the appeal, setting aside the original sentence. The matter was remitted to the District Court for re-sentencing by a different judge, ensuring that the new sentence would appropriately reflect the principles of criminal sentencing and correct the errors identified by the Court of Appeal.

Orders