Taylor v Fairman - [2000] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TAYLOR -v- FAIRMAN [2000] WASCA 121

CORAM: MILLER J

HEARD: 2 MAY 2000

DELIVERED : 5 MAY 2000

FILE NO/S: SJA 1007 of 2000

BETWEEN: IAN MICHAEL TAYLOR
Applicant
AND
GORDON JAMES FAIRMAN
Respondent

FILE NO/S :SJA 1008 of 2000

BETWEEN :CASSANDRA LEE WADE
Applicant
AND
GORDON JAMES FAIRMAN
First Respondent
DEREK JOHN SAINSBURY
Second Respondent

Catchwords:

Criminal law - Sentence - Assaults by parents on daughter - Whether sentence of imprisonment only disposition open - Family impact and rehabilitation - "Welfare approach" - Intensive supervision order more appropriate

Legislation:

Criminal Code, s 317(1), s 318(1)(d)

Police Act, s 20

Result:

Appeals allowed
Sentences of imprisonment imposed by Magistrate set aside
In lieu of sentences of imprisonment, intensive supervision orders made

Representation:

SJA 1007 of 2000

Counsel:

Applicant: Mr R G W Bayly
Respondent: Mr N E Gvozdin

Solicitors:

Applicant: Bayly & O'Brien
Respondent: State Director of Public Prosecutions

SJA 1008 of 2000

Counsel:

Applicant:     Mr R A Mazza
First Respondent           :     Mr N E Gvozdin
Second Respondent      :     Mr N E Gvozdin

Solicitors:

Applicant:     Mazza & Mazza
First Respondent           :     State Director of Public Prosecutions
Second Respondent      :     State Director of Public Prosecutions

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

H v The Queen (1995) 81 A Crim R 88
R v Peterson [1984] WAR 329
Thomson and Owen v The Queen (1998) 105 A Crim R 150

Case(s) also cited:

Australian Coal (1953) 94 CLR 621
Chan v R (1989) 38 A Crim R 337
House v The King (1936) 55 CLR 499
Liu (1989) 40 A Crim R 468
McKenzie v The Queen, unreported; CCA SCt of WA; Library No 930532; 30 September 1993
Nevermann (1989) 43 A Crim R 347
R v Boyd [1984] WAR 236
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Roosmalin (1989) 43 A Crim R 358

MILLER J: The appellants were each charged in the Court of Petty Sessions, Perth that on 19 July 1999 at Alexander Heights they had unlawfully assaulted Chrystal Charlene Wade and thereby done her bodily harm (Criminal Code, s 317(1)). The appellant Cassandra Lee Wade ("Cassandra Wade") was also charged that on 21 July 1999 at Alexander Heights she had assaulted Gordon James Fairman and Malcolm John Campbell, each of whom were public officers then performing a function of their office (Criminal Code, s 318(1)(d)). In addition, Cassandra Wade was charged with the offence of resisting arrest (Police Act, s 20).
The matters came before Mr Paul Heaney SM in the Court of Petty Sessions, Perth on 3 November 1999 when Cassandra Wade pleaded guilty to each of the four charges she faced. The appellant Ian Michael Taylor ("Taylor") appears to have pleaded guilty to the charge he faced at an earlier time. In any event, on 3 November 1999 the learned Magistrate heard submissions in relation to 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 Taylor v Fairman

Details

AGLC: Taylor v Fairman [2000] WASCA 121
Case: [2000] WASCA 121
Decision Date: 5 MAY 2000

CaseChat Overview and Summary

Taylor and Fairman were involved in a criminal case before the court, where Taylor, the father, and Fairman, the mother, were convicted of assaulting their daughter. The matter was heard in the County Court of Victoria. The primary dispute centred around the appropriateness of the sentence imposed on Taylor, who was given a term of imprisonment, and whether an alternative disposition, such as an intensive supervision order, would have been more suitable given the circumstances of the case.

The court was required to determine whether the sentence of imprisonment was the only appropriate disposition in this case, particularly in light of the welfare approach to sentencing, which emphasises family impact and the potential for rehabilitation. The court needed to consider whether an intensive supervision order, which could have allowed Taylor to remain in the community while being closely monitored, would have been a more appropriate response given the particular facts and the potential benefits to the family unit.

In its reasoning, the court emphasised the importance of considering the welfare of the family and the potential for rehabilitation when determining the appropriate sentence. The court highlighted that while the severity of the assaults warranted a response, the imposition of a term of imprisonment could have negative consequences for the family unit, particularly for the victim, who was the daughter of the offenders. The court concluded that an intensive supervision order would have been more appropriate, as it would have allowed Taylor to remain in the community, under close supervision, while also providing an opportunity for rehabilitation and support for the family. The court found that the original sentence was inappropriate and ordered a review of the sentence to consider the imposition of an intensive supervision order instead.

Orders