WALKER -v- ALLEN [2006] WASC 89

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 89
Case No:	SJA:1028/2006	Heard:	16 MAY 2006
Coram:	MCKECHNIE J	Delivered:	19/05/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence suspended
Category:	D
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Parties:	TRAVIS BENJAMIN WALKER DARREN MAXWELL ALLEN
Catchwords:	Criminal law and procedure Sentencing Unlawful wounding Beer glass Whether 9 months' imprisonment excessive Whether sentence should have been suspended
Legislation:	Nil
Case References:	Dinsdale v The Queen (2000) 202 CLR 321 Latham (2000) 117 A Crim R 74 Lowndes v The Queen (1999) 195 CLR 665 Markarian v The Queen (2005) 215 ALR 213 Etrelezis v The Queen [2001] WASCA 327 Janerka v Bethell [2002] WASCA 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WALKER -v- ALLEN [2006] WASC 89 CORAM : MCKECHNIE J HEARD : 16 MAY 2006 DELIVERED : 19 MAY 2006 FILE NO/S : SJA 1028 of 2006 BETWEEN : TRAVIS BENJAMIN WALKER

Appellant

AND

DARREN MAXWELL ALLEN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E D CAMPIONE

File No : KH 1188 of 2005

Catchwords:

Criminal law and procedure - Sentencing - Unlawful wounding - Beer glass - Whether 9 months' imprisonment excessive - Whether sentence should have been suspended

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Sentence suspended

Category: D

Representation:

Counsel:

Appellant : Mr L M Levy

Respondent : Mr B M Hollingsworth

Solicitors:

Appellant : Laurie Levy & Associates

Respondent : State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321
Latham (2000) 117 A Crim R 74
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 215 ALR 213

Case(s) also cited:

Etrelezis v The Queen [2001] WASCA 327
Janerka v Bethell [2002] WASCA 198

(Page 3)

1 MCKECHNIE J: On 21 March 2006 the appellant was sentenced to a term of 9 months' imprisonment relating to his plea of guilty to one charge of unlawful wounding.

2 Subsequently, he sought leave to appeal and bail pending appeal against the sentence and bail pending his appeal. As the issue is in short compass I directed that both parties present full argument about the appeal on the application for bail. Leave to appeal is granted.

3 The transcript of all the proceedings in the Magistrate's Court is incomplete but there is transcript of the plea in mitigation and sentencing.

4 By consent, counsel for the appellant handed up a statement of the complainant. That statement discloses that the complainant was at the All Seasons Hotel (formerly the Mecure Hotel) in Karratha. While he was taking a bag out to a car he accidentally bumped the appellant who pulled him up and started talking to him. The complainant ignored him and kept trying to walk towards the exit. The appellant pulled him up again, so the complainant turned around and pushed his left shoulder…

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 Walker v Allen

Details

AGLC: Walker v Allen [2006] WASC 89
Case: [2006] WASC 89
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an appeal brought by Travis Benjamin Walker against his conviction and sentence for unlawful wounding. Walker had pleaded guilty to hitting another person with a beer glass, causing injury that required six stitches. The Magistrate's Court had sentenced Walker to 9 months' imprisonment, to be immediately served. Walker appealed on the grounds that the sentence was manifestly excessive and that the Magistrate erred in not considering a suspended sentence.

The court examined whether the Magistrate correctly exercised her discretion in sentencing Walker. The court noted that the offence involved the use of a glass to the side of the victim's face, which increased the seriousness of the crime and justified the need for general deterrence. However, the court also considered mitigating factors such as Walker's plea of guilty, his remorse, the lack of premeditation, and his relatively minor criminal history. The court found that while imprisonment was appropriate for the seriousness of the offence, the Magistrate should have considered suspending the sentence given the mitigating factors and Walker's personal circumstances.

The court concluded that the Magistrate had erred in not suspending the sentence despite finding imprisonment to be the appropriate penalty. The appeal was allowed, and the sentence of 9 months' imprisonment was suspended for a period of 7 months, taking into account the time Walker had already spent in custody.

Orders:
1. The appeal is allowed.
2. The sentence of 9 months' imprisonment imposed is suspended for a period of 7 months.

Orders