Van Arkel v Tordoff - [2020] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VAN ARKEL -v- TORDOFF [2020] WASC 153
CORAM:   ALLANSON J
HEARD:   5 MAY 2020
DELIVERED          :   12 MAY 2020
FILE NO/S:   SJA 1015 of 2020
BETWEEN:   CAROLE MARY VAN ARKEL
Appellant
AND
DANIEL TORDOFF
First Respondent
CHANTELLE WEBSTER
Second Respondent
DAVID KINSEY
Third Respondent
CRAIG BROWN
Fourth Respondent
JUSTIN FOSTER
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V C EDWARDS
File Number            :   PE 58968 of 2019, RO 2275 of 2019, RO 2276 of 2019, RO 2277 of 2019, RO 4452 of 2019, RO 7725 of 2019, RO 8523 of 2019, RO 182 of 2020

Catchwords:

Criminal law - Sentencing - Where magistrate did not hear facts before resentencing after breach of CBO - Whether failure to give weight to a relevant consideration in sentencing

Criminal law - Sentencing - Where sentence of 3 months' imprisonment for breach of VRO manifestly excessive in circumstances - Whether no substantial miscarriage of justice in total sentence of 7 months' imprisonment for persistent minor offending

Criminal law - Resentencing where appellant had served 4 months of 7 months sentence before appeal - Where court on appeal cannot impose sentence of 6 months or less - Suspended fine imposed

Legislation:

Bail Act 1982 (WA), s 51
Criminal Appeals Act 2004 (WA), s 14, s 41
Criminal Code, s 444
Criminal Procedure Act 2004 (WA), s 129
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 6, pt 8A

Result:

Appeal allowed
Appellant re‑sentenced

Category: B

Representation:

Counsel:

Appellant	:	N Sinton
First Respondent	:	T B L Scutt
Second Respondent	:	T B L Scutt
Third Respondent	:	T B L Scutt
Fourth Respondent	:	T B L Scutt
Fifth Respondent	:	T B L Scutt

Solicitors:

Appellant	:	Legal Aid - Perth
First Respondent	:	Director Of Public Prosecutions (WA)
Second Respondent	:	Director Of Public Prosecutions (WA)
Third Respondent	:	Director Of Public Prosecutions (WA)
Fourth Respondent	:	Director Of Public Prosecutions (WA)
Fifth Respondent	:	Director Of Public Prosecutions (WA)

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

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
Baudoeuf v Venning [2010] WASC 322
Cullen v Rollings [2009] WASC 80
Hagart v Viles [2010] WASC 200
Hall v The State of Western Australia [2018] WASCA 151
Lutey v Jacques [2010] WASC 78
NPA v The State of Western Australia [2018] WASCA 131
Powell v State of Western Australia [2010] WASC 54
Wallam v Dent [2008] WASC 170

ALLANSON J:

Introduction

This appeal was heard on 5 May 2020. At the conclusion of the hearing I made orders granting leave and allowing the appeal, setting aside the sentences imposed and resentencing the appellant. I gave brief reasons for the sentences imposed on resentencing. These are my reasons for allowing the appeal.
The appellant, Carole Mary Van Arkel, applied for leave to appeal against a total effective sentence of imprisonment for…

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 Van Arkel v Tordoff

Details

AGLC: Van Arkel v Tordoff [2020] WASC 153
Case: [2020] WASC 153
Decision Date: 12 MAY 2020

CaseChat Overview and Summary

The appellant in this case, Van Arkel, was convicted of breaching a violence restraining order and was sentenced to three months' imprisonment by a magistrate. The sentence was imposed after the appellant breached a community-based order. The matter came before the court on appeal, and the appellant argued that the original sentence was manifestly excessive and that the magistrate did not give sufficient weight to relevant considerations in sentencing. The appellant also argued that the total sentence of seven months' imprisonment for persistent minor offending was a substantial miscarriage of justice. The court had to determine whether the original sentence was manifestly excessive, whether the magistrate failed to give weight to relevant considerations, and whether the total sentence of seven months' imprisonment constituted a substantial miscarriage of justice.

The court found that the original sentence of three months' imprisonment was indeed manifestly excessive in the circumstances of the case. The court also found that the magistrate did not give sufficient weight to the fact that the appellant had served a previous sentence for a similar offence and that the appellant had shown remorse. However, the court found that there was no substantial miscarriage of justice in the total sentence of seven months' imprisonment for persistent minor offending. The court found that the appellant's persistent minor offending warranted a more severe sentence than the original sentence of three months' imprisonment. The court also found that the appellant had served four months of the seven-month sentence before the appeal, and that the court on appeal could not impose a sentence of six months or less. The court imposed a suspended fine of $500 on the appellant.

In summary, the court found that the original sentence of three months' imprisonment was manifestly excessive and that the magistrate did not give sufficient weight to relevant considerations in sentencing. However, the court found that there was no substantial miscarriage of justice in the total sentence of seven months' imprisonment for persistent minor offending. The court imposed a suspended fine of $500 on the appellant.

Orders