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
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:
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- AGLC
- Turvey v Clifton [2012] WASC 322
- Case
- [2012] WASC 322
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Legal Principle Established
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