THOMSON -v- ELLIOTT [2005] WASC 135

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 135
Case No:	SJA:1116/2004	Heard:	3 JUNE 2005
Coram:	MCKECHNIE J	Delivered:	3/06/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences ordered to be served concurrently
Category:	B
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Parties:	PATRICK DAVID THOMSON ANDREW WILLIAM ELLIOTT
Catchwords:	Criminal law and procedure Sentencing One transaction
Legislation:	Nil
Case References:	Faithfull (2004) 142 A Crim R 554 Pieri v The Queen [2002] WASCA 288 R v White [2002] WASCA 112 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THOMSON -v- ELLIOTT [2005] WASC 135 CORAM : MCKECHNIE J HEARD : 3 JUNE 2005 DELIVERED : 3 JUNE 2005 FILE NO/S : SJA 1116 of 2004 BETWEEN : PATRICK DAVID THOMSON

Appellant

AND

ANDREW WILLIAM ELLIOTT

Respondent

Catchwords:

Criminal law and procedure - Sentencing - One transaction

Legislation:

Nil

Result:

Appeal allowed

Sentences ordered to be served concurrently

(Page 2)

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms S H Linton

Solicitors:

Appellant : In person

Respondent : State Director of Public Prosecutions

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

Faithfull (2004) 142 A Crim R 554
Pieri v The Queen [2002] WASCA 288
R v White [2002] WASCA 112

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: On 25 May 2005 the appellant came before me on an application for leave to appeal against sentences totalling some 2 years' imprisonment. His application for leave to appeal detailed a number of grounds. Under the Criminal Procedure Act 2004, which came into effect at the beginning of May 2005, I am required to consider each ground and to refuse leave to appeal on a ground if there are no reasonable prospects of success.

2 Exercising that power, I refused leave in respect of most of the grounds but gave the appellant leave to appeal on one ground which I will deal with shortly. I directed that the respondent be served. I acknowledge once again the assistance to the court which the DPP has given in a number of these matters in preparing and being available at relatively short notice to deal with appeals by representing the respondent.

3 I think it is important in these appeals against sentence that they are dealt with as quickly as possible and the Court is devising procedures to ensure that this will occur. I acknowledge, as I have said, the assistance of the respondent who is, I suspect, sometimes at some inconvenience but nevertheless responds to the Court's request. In this case the respondent has filed detailed answering submissions for which I am grateful.

4 I return now to the ground of appeal which is, in essence, that the sentences of 12 months that were imposed in respect of two counts of burglary should have been made concurrent rather than cumulative because they arose out of the one transaction. The appellant was sentenced on 1 October 2004 as…

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 Thomson v Elliott

Details

AGLC: Thomson v Elliott [2005] WASC 135
Case: [2005] WASC 135
Decision Date

CaseChat Overview and Summary

In the case of Thomson v Elliott, the Supreme Court of Western Australia addressed an appeal against sentences imposed on Patrick David Thomson by the Magistrates Court. Thomson was sentenced to 2 years' imprisonment for multiple offences, including two counts of burglary. The appeal focused on the issue of whether the sentences for the two burglary charges should have been ordered to run concurrently rather than cumulatively, as they arose from the same transaction. The respondent, Andrew William Elliott, was represented by the State Director of Public Prosecutions.

The legal issue before the court was whether the sentences for the two burglary counts should be concurrent or cumulative. The appellant argued that since both burglaries occurred during the same transaction, the sentences should have been concurrent. The court had to determine whether the Magistrate had erred in ordering the sentences to run cumulatively.

The court found that the Magistrate had indeed erred in not ordering the sentences to be concurrent. The court reasoned that the principle of the one transaction rule should apply in this case, as the burglaries were part of a single course of criminal conduct. Although there were two separate legally protected interests, the court found that the essence of the criminality was the breaking into the building and stealing items from it. Therefore, the Magistrate's decision to impose cumulative sentences was incorrect. The appeal was allowed, and the order was made that the sentence for the second burglary count would run concurrently with the other sentences imposed.

Orders