TYSOE -v- KENNEDY & ORS [2005] WASC 148

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 148
Case No:	SJA:1040/2005	Heard:	22 JUNE 2005
Coram:	MCKECHNIE J	Delivered:	22/06/05
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed Parole term for composite sentence
Category:	D
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Parties:	PAUL RAYMOND TYSOE RACHEL MARIE KENNEDY STEVEN ADRIAN TREWIN GLENN DAVID RUDRUM BROCK CHRISTOPHER LUCEV
Catchwords:	Criminal law Sentencing Domestic violence Always treated seriously Parole Miscarriage of justice
Legislation:	Sentencing Administration Act 1995 (WA)
Case References:	Begg v Bartlett [2004] WASCA 232 Jarvis v The Queen (1998) 20 WAR 201 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TYSOE -v- KENNEDY & ORS [2005] WASC 148 CORAM : MCKECHNIE J HEARD : 22 JUNE 2005 DELIVERED : 22 JUNE 2005 FILE NO/S : SJA 1040 of 2005 MATTER : Justices Act 1902 (WA) BETWEEN : PAUL RAYMOND TYSOE

Appellant

AND

RACHEL MARIE KENNEDY

First-named Respondent

STEVEN ADRIAN TREWIN

Second-named Respondent

GLENN DAVID RUDRUM

Third-named Respondent

FILE NO/S : SJA 1039 of 2005 MATTER : Justices Act 1902 (WA)

BETWEEN : PAUL RAYMOND TYSOE

Appellant

AND

RACHEL MARIE KENNEDY

First-named Respondent

(Page 2)

GLENN DAVID RUDRUM

Second-named Respondent

BROCK CHRISTOPHER LUCEV

Third-named Respondent

ON APPEAL FROM:

For File No : SJA 1040 of 2005

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR R K BLACK SM

File No : PE 35660 of 2004, PE 35661 of 2004, PE 51537 of 2004

For File No : SJA 1039 of 2005

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR I G BROWN SM

File No : PE 42431 of 2004, PE 51535 of 2004, PE 51536 of 2004, PE 8845 of 2005, PE 8846 of 2005, PE 8847 of 2005

Catchwords:

Criminal law - Sentencing - Domestic violence - Always treated seriously - Parole - Miscarriage of justice

Legislation:

Sentencing Administration Act 1995 (WA)

Result:

Appeal allowed

Parole term for composite sentence

(Page 3)

Category: D

Representation:

SJA 1040 of 2005

Counsel:

Appellant : Mr A J Robson

First-named Respondent : Mr M A Perrella

Second-named Respondent : Mr M A Perrella

Third-named Respondent : Mr M A Perrella

Solicitors:

Appellant : Legal Aid of Western Australia

First-named Respondent : State Director of Public Prosecutions

Second-named Respondent : State Director of Public Prosecutions

Third-named Respondent : State Director of Public Prosecutions

SJA 1039 of 2005

Counsel:

Appellant : Mr A J Robson

First-named Respondent : Mr M A Perrella

Second-named Respondent : Mr M A Perrella

Third-named Respondent : Mr M A Perrella

Solicitors:

Appellant : Legal Aid of Western Australia

First-named Respondent : State Director of Public Prosecutions

Second-named Respondent : State Director of Public Prosecutions

Third-named Respondent : State Director of Public Prosecutions

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

Begg v Bartlett [2004] WASCA 232
Jarvis v The Queen (1998) 20 WAR 201

(Page 4)

Case(s) also cited:

Nil

(Page 5)

1 MCKECHNIE J: For reasons which will become apparent these two…

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 Tysoe v Kennedy

Details

AGLC: Tysoe v Kennedy [2005] WASC 148
Case: [2005] WASC 148
Decision Date

CaseChat Overview and Summary

The appellant, Paul Raymond Tysoe, appealed against sentences imposed by two different Magistrates on the same day, 2 March 2005. The sentences arose from multiple charges including threats, breaches of a violence restraining order, and driving under suspension. The appeals focused on the sentencing process, the application of the totality principle, and the issue of parole eligibility. The primary legal issues were whether the sentences were appropriate under the totality principle and if the non-parole period imposed by one Magistrate could be altered by the other.

The court examined whether the Magistrates erred in their sentencing, particularly whether Magistrate Brown failed to adequately consider the totality principle or if the cumulative sentences were manifestly excessive. The court found that while Magistrate Brown was careful in applying the totality principle, there was an error in failing to recognize that he could not alter the non-parole period set by Magistrate Black. Despite no judicial error, the court concluded that the outcome resulted in a miscarriage of justice due to the appellant's parole ineligibility.

The court allowed both appeals, varying the orders to include a parole eligibility order for the entire sentence of 23 months. The combined sentence of 23 months, backdated to commence on 21 January 2005, was upheld, but the parole term was adjusted to ensure the appellant would be eligible for parole.

Orders