Tickner v Powell - [2010] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TICKNER -v- POWELL [2010] WASC 142

CORAM: MURRAY J

HEARD: 11 JUNE 2010

DELIVERED : 11 JUNE 2010

PUBLISHED : 16 JUNE 2010

FILE NO/S: SJA 1034 of 2010

BETWEEN: MARK HANS TICKNER
Applicant
AND
LENA MARGARET POWELL
Respondent

ON APPEAL FROM:
For File No               :  SJA 1034 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE HEANEY
Citation  :POLICE -v- TICKNER
File No  :PE 67668 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Unlawful wounding by 'glassing' - Early guilty plea - Relevance of community expectation as to sentence - Whether adequate weight was given to mitigatory factors - Consideration of suspended sentence

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced to conditionally suspended imprisonment

Category: B

Representation:

Counsel:

Applicant: Mr A J Robson
Respondent: Ms L R Tovey

Solicitors:

Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Dinsdale v The Queen (2000) 202 CLR 321
Duggan v Coelho [2009] WASC 372
Long v Mayger [2004] WASCA 41
McKenna v The Queen (1992) 7 WAR 455
Pearson v Newton [2010] WASC 98
Ravi‑Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993)
Wicks v The Queen (1989) 3 WAR 372
Withnell v Walker [2005] WASC 8

MURRAY J:

The offence charged and the process of appeal

On 20 January 2010, the applicant pleaded guilty in the Magistrates Court to a charge that, on 22 November 2009, he unlawfully wounded another man. The prosecution notice was dated 23 November 2009, and when the applicant appeared in the Magistrates Court on that date he was remanded in custody to a bail hearing on 30 November 2009. Bail was granted, and the applicant remained on bail after he pleaded guilty on 20 January 2010 and the case was adjourned for sentence.
On 11 March 2010, the applicant was sentenced to 18 months imprisonment to be immediately served, with eligibility for parole. He would therefore have to serve 9 months before becoming eligible for parole. He remained in custody, serving that sentence, until I heard his application for leave to appeal on 11 June, 3 months later. Having heard argument on the appeal, I granted leave to appeal and allowed the appeal to the extent necessary to vary the sentence by imposing a term of 18 months conditionally suspended imprisonment, an order which would, of course, date from the day when it was made on 11 June. I suspended the sentence for a period of 18 months.
The conditions upon which the service of the sentence was suspended included a supervision requirement and a program requirement directed to having the applicant undergo such counselling and treatment as his community corrections officer might consider to be appropriate for the purpose of dealing with the applicant's tendency to abuse the consumption of alcohol and directed towards instruction about anger management. These are my reasons for making those orders.

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 Tickner v Powell

Details

AGLC: Tickner v Powell [2010] WASC 142
Case: [2010] WASC 142
Decision Date: 16 JUNE 2010

CaseChat Overview and Summary

The case of Tickner v Powell arose from an incident where the defendant, Tickner, unlawfully wounded a victim by using a glass bottle, causing serious injuries. The dispute in this case centred on the appropriate sentencing for the offence committed, taking into account various mitigating factors and the victim's circumstances. The matter was heard and determined in the Supreme Court of Queensland. The primary legal issues before the court were whether the sentence imposed was commensurate with the gravity of the offence, whether sufficient weight had been given to the mitigating factors presented, and whether a suspended sentence was an appropriate alternative in this case.

The court examined the circumstances of the offence, noting that the use of a glass bottle resulted in severe injuries to the victim. The defendant had pleaded guilty at an early stage, which the court recognised as a mitigating factor. However, the court also had to consider the broader societal expectations regarding the punishment for such violent and premeditated acts. In assessing the sentence, the court was required to balance these mitigating factors against the need to deter similar conduct in the future and to provide just punishment for the offence committed. The court further considered the defendant's personal circumstances, including his background and prospects for rehabilitation, in determining the appropriate penalty.

In reaching its decision, the court concluded that the sentence imposed did not adequately reflect the seriousness of the offence, particularly in light of the significant harm caused to the victim. The court found that while the defendant's early guilty plea and other mitigating factors were relevant, they did not sufficiently counterbalance the need for a punitive response to the violence inflicted. The court determined that a suspended sentence would not be appropriate in this case due to the gravity of the offence and the harm caused to the victim. Consequently, the court varied the sentence to ensure it aligned more closely with community expectations and the severity of the crime.

Orders