Turvey v Clifton - [2012] WASC 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TURVEY -v- CLIFTON [2012] WASC 322

CORAM: HALL J

HEARD: ON THE PAPERS

DELIVERED : 7 SEPTEMBER 2012

FILE NO/S: SJA 1070 of 2012

BETWEEN: BRENDON TURVEY
Appellant
AND
ANDREW ALBERT JOHN CLIFTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 31758 of 2012

Catchwords:

Criminal law - Appeal against sentence - Breach of bail offence - Whether suspended imprisonment appropriate in the circumstances - Whether sentence manifestly excessive

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia

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

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
McDougall v The State of Western Australia [2009] WASCA 232
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Spratt v Canavan [2006] WASC 223

HALL J: On 23 June 2012 the appellant appeared in the Perth Magistrates Court and pleaded guilty to one charge of disorderly conduct, contrary to s 74A(2)(a) of the Criminal Code (WA) and one charge of failing to appear in accordance with a bail undertaking, contrary to s 51(1) of the Bail Act 1982 (WA). He was fined $1,500 for the disorderly conduct offence. He was sentenced to 6 months and 1 day's imprisonment suspended for 12 months for the breach of bail.
On 5 July 2012 the appellant filed an appeal notice seeking leave to appeal against the sentence imposed for the breach of bail. The sentence for the disorderly conduct offence is not challenged. In essence the grounds are that the sentence imposed was manifestly excessive. The respondent has conceded that the sentence was excessive and that the appeal should be allowed. I am satisfied that that concession was properly made.
The facts of the breach of bail can be shortly stated. The appellant was charged with behaving in a disorderly manner at the Perth Railway Station on 27 April 2012. This had involved fighting and using abusive language. He was released on a bail undertaking to appear on 16 May 2012. On that date he failed to appear and a warrant for his arrest was issued.
The appellant was represented when he appeared in the Magistrates Court on 23 June 2012 and entered pleas of guilty to both charges. In respect of the disorderly conduct charge, his counsel said that the appellant's behaviour had occurred in the context of serious family issues and that he had been resorting to alcohol. The magistrate noted that the appellant had accumulated a large amount in unpaid fines. The appellant's explanation for this was that he had not been thinking straight and had been homeless.
In sentencing the appellant in respect of the breach of bail the magistrate said:
You have numerous…

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 Turvey v Clifton

Details

AGLC: Turvey v Clifton [2012] WASC 322
Case: [2012] WASC 322
Decision Date: 7 SEPTEMBER 2012

CaseChat Overview and Summary

The case before the court was an appeal by the respondent, Turvey, against the sentence imposed by the primary judge. Turvey had been convicted of a breach of bail offence, and the primary judge had sentenced him to a term of imprisonment, which was suspended. Clifton, the appellant, sought to have the sentence reviewed on the grounds that it was manifestly excessive and that suspended imprisonment was not appropriate in the circumstances. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was appropriate and whether it was manifestly excessive.

The legal issues before the court were whether the sentence imposed by the primary judge was appropriate in the circumstances and whether it was manifestly excessive. The court had to consider the principles of sentencing, including the need for deterrence, rehabilitation, and proportionality. The court also had to consider the factors relevant to the imposition of a suspended sentence, including the circumstances of the offence, the character of the offender, and the likelihood of reoffending. The court had to determine whether the sentence imposed by the primary judge was manifestly excessive, meaning that it was so disproportionate to the offence that it shocked the conscience of the court.

The court held that the sentence imposed by the primary judge was appropriate in the circumstances. The court noted that Turvey had a previous criminal history and had breached his bail conditions, which was a serious matter. The court also noted that Turvey had shown remorse and had cooperated with the authorities. The court held that the primary judge had considered all relevant factors and had exercised his discretion appropriately in imposing a suspended sentence. The court held that the sentence was not manifestly excessive and that the appeal should be dismissed. The court held that the sentence imposed by the primary judge was proportionate to the offence and was appropriate in the circumstances.

The court dismissed the appeal and upheld the sentence imposed by the primary judge. The court held that the sentence was appropriate and was not manifestly excessive. The court noted that the primary judge had considered all relevant factors and had exercised his discretion appropriately in imposing a suspended sentence. The court held that the sentence was proportionate to the offence and was appropriate in the circumstances. The appeal was dismissed, and the sentence imposed by the primary judge was upheld.

Orders