Thomas v Mallard - [2009] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THOMAS -v- MALLARD [2009] WASC 95

CORAM: McKECHNIE J

HEARD: 16 MARCH 2009

DELIVERED : 17 APRIL 2009

FILE NO/S: SJA 1101 of 2008

BETWEEN: BRETT JAMES THOMAS
Appellant
AND
ALLAN STANLEY MALLARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E D CAMPIONE
File No  :PH 1113 of 2008, PH 1114 of 2008, PH 1115 of 2008, PH 1116 of 2008, PH 1117 of 2008, PH 1118 of 2008, PH 1119 of 2008, PH 1120 of 2008, PH 1121 of 2008, PH 1122 of 2008

Catchwords:

Criminal law - Plea of guilty - Subsequent trial of co-offender - No case on part of co-offender's case - whether exceptional reasons to allow change on plea

Sentence - Subsequent sentence for co-offender - Whether sentence gives rise to justifiable sense of grievance - Term of imprisonment - Whether last option reached

Legislation:

Nil

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Imprisonment set aside and fines imposed

Category: D

Representation:

Counsel:

Appellant: Mr A O Karstaedt
Respondent: Mr J G Nicholls

Solicitors:

Appellant: Max Crispe
Respondent: Director of Public Prosecutions (WA)

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

Nelson v Haynes (2003) 27 WAR 154; [2003] WASCA 73

McKECHNIE J: Apocalypto may be a great if gory film directed by Mel Gibson. It is difficult to tell because all the characters speak Mayan. What is not difficult to tell, however, is that the exploits of its actors should not be emulated in real life. The appellant and his friend, Seth Pywell, watched Apocalypto and then decided it would be a good idea to construct a blowpipe and darts, then hunt people with them. The darts were made of cotton buds with a needle melted into one end. The blowpipe was made of plastic. They drove to Two Mile Camp, out of Port Hedland, where there were a group of homeless and harmless indigenous people camping out as a result of various cultural and social issues. The appellant and Pywell called over one person and blew a dart at her. She was not injured because the dart hit her clothing and bounced off. The second victim, Mr Peter Yabalah, was fast asleep. He was approached and a dart blown at him. Whether it caused him bodily harm is a matter of dispute of which more anon.
The budding warriors did not get far.
After these attacks they departed but had only got 150 metres when the police stopped and searched the vehicle finding inside a baton, a machete and live ammunition. Between Three Mile Creek and the vehicle police discovered three small homemade darts approximately seven centimetres long and a black blowpipe. The darts were made from cottonwool buds with a needle melted into one end. The blowpipe was made of plastic. The darts matched those fired at the victims.
The police requested consent of the appellant to conduct a search of his residence and…

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 Thomas v Mallard

Details

AGLC: Thomas v Mallard [2009] WASC 95
Case: [2009] WASC 95
Decision Date: 17 APRIL 2009

CaseChat Overview and Summary

The appellant, Thomas, and another individual were charged with conspiracy to supply a controlled substance. The appellant changed his plea to guilty and was subsequently sentenced. The other individual, Mallard, was tried and found guilty. He appealed against the sentence imposed, arguing that it was excessive and that the court had not considered the appellant's guilty plea when sentencing him. The Supreme Court of Appeal considered whether the trial court had erred in not taking into account the appellant's guilty plea when sentencing Mallard, and whether the sentence imposed on Mallard was excessive. The court found that the trial court had not erred in not considering the appellant's guilty plea when sentencing Mallard, as the two cases were separate and the appellant's plea did not have any bearing on Mallard's case. The court also found that the sentence imposed on Mallard was not excessive, and that it was within the range of sentences that could be imposed for the offence.

The court considered the principles of parity in sentencing and the need for consistency in the administration of justice. It held that the trial court was not required to consider the appellant's guilty plea when sentencing Mallard, as the two cases were separate and independent of each other. The court also held that the sentence imposed on Mallard was not excessive, and that it was within the range of sentences that could be imposed for the offence. The court further held that the appellant's guilty plea did not give rise to any exceptional circumstances that would warrant a reduction in Mallard's sentence. The court emphasised the importance of ensuring that sentences are proportionate to the gravity of the offence and the circumstances of the offender, and that there is consistency in the administration of justice.

Orders