Van Arkel v Tordoff

Case [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

  1. 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.

  2. The appellant, Carole Mary Van Arkel, applied for leave to appeal against a total effective sentence of imprisonment for…

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Van Arkel v Tordoff [2020] WASC 153
Case
[2020] WASC 153
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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