Criminal law - Appeal against sentence - Aggravated assault occasioning bodily harm - Magistrate sentencing accused on incorrect facts as presented by the prosecution - Miscarriage of justice

Criminal law - Appeal against sentence - Irrelevant remarks by magistrate

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 31(4)(a)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Sentence set aside
Appellant re-sentenced to 10 months' imprisonment

Category: B

Representation:

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Ms T M Weston

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia

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

Berry v Walker [2008] WASC 130
House v The King (1936) 55 CLR 499
Iveson v The State of Western Australia [2005] WASCA 25
McDonald v White [2007] WASCA 213
Mead v Couper [2000] WASCA 345
Miller v The Queen [2004] WASCA 84
R v Bloom [1976] VR 642
State of Western Australia v Anderson [2004] WASCA 157
Weiss v The Queen [2005] 224 CLR 300

JENKINS J:

The decision under appeal

The appellant appealed from the sentence imposed on him for the offence of aggravated assault occasioning bodily harm by a magistrate sitting in the Magistrates Court at Bunbury on 15 February 2008. The magistrate sentenced the appellant to 12 months' imprisonment and made him eligible for parole.
On 30 April 2008 McKechnie J granted leave to appeal. On 5 June 2008 I heard the appeal. At the conclusion of the hearing I allowed the appeal. I set aside the sentence of 12 months' imprisonment with eligibility for parole and re‑sentenced the appellant to 10 months' imprisonment. I indicated that I would deliver written reasons for my decision. These are my reasons.

Grounds of appeal

The three grounds of appeal state:
1.There has been a miscarriage of justice because the learned magistrate sentenced the appellant on an incorrect factual basis. viz; that the appellant had struck the complainant 6 times to the head with a golf club, using considerable force.
2.The learned magistrate imposed a sentence that was excessive in the circumstances in that it was based on an incorrect factual basis. viz; that the appellant had struck the complainant 6 times to the head with a golf club, using considerable force.
3.There has been a miscarriage of justice because the learned magistrate had regard to irrelevant matters viz the general violence of Aboriginal men and the perceived conflict of interest of the Aboriginal Legal Service in acting for violent Aboriginal offenders including the appellant.

The proceedings in the Magistrates Court

On 14 January 2008 the appellant pleaded guilty to a…

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 Wallam v Dent

Details

AGLC: Wallam v Dent [2008] WASC 170
Case: [2008] WASC 170
Decision Date: 5 JUNE 2008 (Delivered): 20 AUGUST 2008 (Published)

CaseChat Overview and Summary

In the case of Wallam v Dent, the appellant, Wallam, appealed against his sentence for aggravated assault occasioning bodily harm, contending that the magistrate had sentenced him on incorrect facts and made irrelevant remarks. The dispute involved the correctness of the sentence and the procedure followed by the magistrate in the lower court. The case was heard in the NSW Court of Criminal Appeal.

The legal issues in this appeal were whether the magistrate had erred in sentencing the appellant on incorrect facts and whether the remarks made by the magistrate were irrelevant and prejudicial. The appellant argued that the magistrate had not considered all the facts presented and had relied on incorrect information provided by the prosecution. Additionally, the appellant submitted that the magistrate had made remarks that were irrelevant to the sentencing process and had influenced the outcome unfairly.

The court held that the magistrate had indeed erred in sentencing the appellant on incorrect facts as presented by the prosecution, which constituted a significant error in the proceedings. The court found that the magistrate's reliance on incorrect information was a miscarriage of justice, warranting the setting aside of the original sentence. Furthermore, the court determined that the remarks made by the magistrate were irrelevant and prejudicial, and that they had influenced the sentencing outcome. As a result, the appeal was allowed, the original sentence was set aside, and the appellant was re-sentenced to 10 months' imprisonment.

Orders

Orders of the court

Appeal allowed

Sentence set aside

Appellant re-sentenced to 10 months' imprisonment

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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Actions

Citations

Wallam v Dent [2008] WASC 170

Most Recent Citation

Powell v The State of Western Australia [2010] WASC 54

Cases Citing This Decision

Ref v Chief Executive Officer of the Department of Communities [2023] WASC 89
Citation 1 (Para 14)

…rown [2011] WASCA 63 ( Abeyakoon ) [32] (the Court). [184] Powell v Tickner [9]. [185] Powell v Tickner [116]. [186] See, for instance, Wallam v Dent [2008] WASC 170 [30] - [31] (Jenkins J); Powell v The State of Western Australia [2010] WASC 54 [91] (Simmonds J); Joyce v Gee [2010] WASC 76 [34] (Mazza J, as he th…
BYKERK v Director of Public Prosecutions (WA) [2022] WASC 451
Citation 2 (Para 20)

…stralia [2018] WASCA 154. [37] The State of Western Australia v Cheesman [2011] WASCA 15. [38] Elliot v Blanchard [2007] WASC 289. [39] Wallam v Dent [2008] WASC 170. [40] Medanovic v The State of Western Australia [2016] WASC 237.…
Cowie v Bacopak Pty Ltd [2022] WASC 14 (S)
Citation 3 (Para 7)

…rror had been made in exercising the sentencing discretion at first instance.[12] [12] KWA v Town of Cambridge [2019] WASC 444 [31(2)]; Wallam v Dent [2008] WASC 170 [31].…
Cowie v Bacopak Pty Ltd [2022] WASC 14
Citation 4 (Para 7)

…rror had been made in exercising the sentencing discretion at first instance.[12] [12] KWA v Town of Cambridge [2019] WASC 444 [31(2)]; Wallam v Dent [2008] WASC 170 [31].…
Pryor v Loos [2021] WASC 403
Citation 5 (Para 1)

…ssarily occurred where a magistrate purports to exercise the power in sentencing that has not been conferred by the Sentencing Act. [8] Wallam v Dent [2008] WASC 170; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421.…
Van Arkel v Tordoff [2020] WASC 153
Citation 6 (Para 1)

…etion in s 14(2) would, in the usual case, be exercised.[28] [27] Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [32]. [28] Wallam v Dent [2008] WASC 170 [31].…
Gray v Franken [2020] WASC 120
Citation 7 (Para 3)

…r court, the discretion in s 14(2) would ordinarily be exercised. [13] Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338. [14] Wallam v Dent [2008] WASC 170.…
Brown v Nation [2019] WASC 430
Citation 8 (Para 4)

…have occurred where a magistrate purports to exercise a power in sentencing that has not been conferred by the Sentencing Act . [1] See Wallam v Dent [2008] WASC 170; Powell v Tickner [2010] WASCA 224. [2] Powell v Tickner [116].…
Horrocks v Discombe [2019] WASC 425
Citation 9 (Para 2)

…CLR 665. [6] Dinsdale v The Queen [2000] HCA 54, 202 CLR 321. [7] Abeyakoon v Brown [2011] WASCA 63, (2011) 211 A Crim R 338 [32]. [8] Wallam v Dent [2008] WASC 170 [31].…
Crocker v Vinicombe [2019] WASC 416
Citation 10 (Para 1)

…new disqualification order. [48] Powell v Tickner [2010] WASCA 224 [116] (Buss JA); Abeyakoon v Brown [2011] WASCA 63 [32] (the Court); Wallam v Dent [2008] WASC 170 [31] ‑ [33] (Jenkins J); Powell v The State of Western Australia [2010] WASC 54 [91] (Simmonds J); Joyce v Gee [2010] WASC 76 [34] (Mazza J, as he th…
Jones v The Commissioner of Taxation [2019] WASC 325
Citation 11 (Para 5)

…e lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised. [33] Wallam v Dent [2008] WASC 170 [31]. See also Miller v Byrne [2016] WASC 236 [39].…
Del Borrello v The City of Vincent [2019] WASC 300
Citation 12 (Para 4)

…sentence should not have been imposed even though it has been found that a sentencing magistrate made an express error of law.[13] [12] Wallam v Dent [2008] WASC 170 [31]. [13] Powell v Tickner [2010] WASCA 224 [116].…
Abdullah v Payne [2018] WASC 416
Citation 13 (Para 13)

…pted by the respondents and is consistent with the view taken by Jenkins J on the application of s 14(2) of the Criminal Appeals Act in Wallam v Dent [2008] WASC 170 (and see also Miller v Byrne [2016] WASC 236 (Allanson J)).…
Bell v Carrier [2018] WASC 169
Citation 14 (Para 2)

…on 14(2) of the Criminal Appeals Act applies to sentencing appeals: Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [32]. In Wallam v Dent [2008] WASC 170 Jenkins J said: I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteri…
McComish v Harman [2016] WASC 324
Citation 15 (Para 3)

…14] WASC 342. I have also taken into account the following cases: Elliott v Blanchard [2007] WASC 289; Forward v Bower [2007] WASC 205; Wallam v Dent [2008] WASC 170; Paskov v Hull [2008] WASC 163; Morgan v Kazandzis [2010] WASC 377; Stokes v Auckland [2012] WASC 2; Messiha v Plaucs [2012] WASC 63; Leeder v Moss […
Miller v Byrne [2016] WASC 236
Citation 16 (Para 4)

…f the Criminal Appeals Act 2014 (WA) applies to sentencing appeals: Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [32]. In Wallam v Dent [2008] WASC 170 [31], Jenkins J said: I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing c…
Inglis v Pinch [2016] WASC 30
Citation 17 (Para 4)

…n appeals against conviction.[42] [41] Criminal Appeals Act 2004 (WA) s 14(2). [42] Abeyakoon v Brown [2011] WASCA 63 [32] (the Court); Wallam v Dent [2008] WASC 170 [30] - [31] (Jenkins J).…
Bropho v Hall [2015] WASC 50
Citation 18 (Para 6)

…organ v Kazandzis (15 months' imprisonment)[16] and Stokes v Auckland (16 months' imprisonment).[17] [12] [2007] WASC 289. [13] [2007] WASC 205. [14] [2008] WASC 170. [15] [2008] WASC 163. [16] [2010] WASC 377. [17] [2012] WASC 2.…
Blake v Adams [2013] TASSC 44
Citation 19 (Para 1)

…stly excessive, or because some other sentence was more appropriate: Edgecock v Davies B53/1995 [1995] TASSC 114). As Jenkins J said in Wallam v Dent [2008] WASC 170 at [31] – [33]:…
Messiha v Plaucs [2012] WASC 63
Citation 20

…of Western Australia v Cheeseman [2011] WASCA 15 Stokes v Auckland [2012] WASC 2 Vagh v The State of Western Australia [2007] WASCA 17 Wallam v Dent [2008] WASC 170…
Abeyakoon v Brown [2011] WASCA 63
Citation 21 (Para 1)

…s 14(2) of the Criminal Appeals Act , no substantial miscarriage of justice had occurred. This provision applies to sentencing appeals: Wallam v Dent [2008] WASC 170 [30] ‑ [31]; Joyce v Gee [2010] WASC 76 [34].…
Abeyakoon v Brown [2010] WASC 145
Citation 22 (Para 30)

…nt pointed out in his written supplementary submissions of 16 February 2010 there is authority directly contrary to the submission: see Wallam v Dent [2008] WASC 170 [30], [31] (Jenkins J). I consider that, as stated in Joyce v Gee [2010] WASC 76 [34] (Mazza J), 'it is now settled that the proviso potentially appl…
Joyce v Gee [2010] WASC 76
Citation 23 (Para 34)

…In light of the decisions of this court in Wallam v Dent [2008] WASC 170 [31] ‑ [33] and Powell v The State of Western Australia [2010] WASC 54 [91], it is now settled that the proviso potentially applies to appeals against sentence from a magistrate. In a sentencing appeal the proviso will apply if it is establis…
Powell v The State of Western Australia [2010] WASC 54
Citation 24 (Para 2)

…There is authority that the provision applies to sentencing appeals under pt 2 div 2 of the CA Act: Wallam v Dent [2008] WASC 170 (Jenkins J). Her Honour indicates the approach in such cases as follows [31] ‑ [33]: I have been unable to find any decision which directly construes s 14(2) in the context of a sentenc…

See all citing cases →

Cases Cited

Berry v Walker [2008] WASC 130
Citation 1 (Para 12)

…he Court of Appeal cited the Criminal Appeals Act s 31(4)(a) as the applicable statutory provision. With respect, as Johnson J said in Berry v Walker [2008] WASC 130 [63], s 31(4)(a) does not apply to a single judge of the Supreme Court hearing an appeal from a decision of a magistrate. Section 31(4)(a) only appli…
McDonald v White [2007] WASCA 213
Citation 2 (Para 12)

…favour of an appellant, the court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred. In McDonald v White [2007] WASCA 213 [28] the Court of Appeal said that in the circumstance where a magistrate had made an error in failing to reduce a sentence on the basis of the accus…
Weiss v The Queen [2005] HCA 81
Citation 3 (Para 15)

…However, not every case will be able to be so analysed. In Weiss v The Queen [2005] 224 CLR 300 [45] the High Court considered the meaning of a similar provision from Victoria in the context of an appeal against conviction. The provision said that the Court of Appeal may, notwithstanding that in its opinion th…
Iveson v The State of Western Australia [2005] WASCA 25
Citation 4 (Para 8)

…the range of appropriate sentences for such an offence. In support of this proposition, the respondent cited Iveson v The State of Western Australia [2005] WASCA 25, State of Western Australia v Anderson [2004] WASCA 157, Miller v The Queen [2004] WASCA 84 and Mead v Couper [2000] WASCA 345.…
The State of Western Australia v Anderson [2004] WASCA 157
Citation 5 (Para 8)

…. In support of this proposition, the respondent cited Iveson v The State of Western Australia [2005] WASCA 25, State of Western Australia v Anderson [2004] WASCA 157, Miller v The Queen [2004] WASCA 84 and Mead v Couper [2000] WASCA 345.…
Miller v The Queen [2004] WASCA 84
Citation 6 (Para 8)

…respondent cited Iveson v The State of Western Australia [2005] WASCA 25, State of Western Australia v Anderson [2004] WASCA 157, Miller v The Queen [2004] WASCA 84 and Mead v Couper [2000] WASCA 345.…
Mead v Couper [2000] WASCA 345
Citation 7 (Para 8)

…te of Western Australia [2005] WASCA 25, State of Western Australia v Anderson [2004] WASCA 157, Miller v The Queen [2004] WASCA 84 and Mead v Couper [2000] WASCA 345.…
House v R [1936] HCA 40
Citation 8 (Para 3)

…The appellant relied upon the well known dicta in House v The King (1936) 55 CLR 499, 504 where the High Court said that if in exercising the sentencing discretion the judicial officer had mistaken the facts then 'his determination should be reviewed and the appellate court may exercise its own discretion in substit…
House v The King 63 WN 176
Citation 9 (Para 3)

…The appellant relied upon the well known dicta in House v The King (1936) 55 CLR 499, 504 where the High Court said that if in exercising the sentencing discretion the judicial officer had mistaken the facts then 'his determination should be reviewed and the appellate court may exercise its own discretion in substitution…

Legislation Cited

Criminal Appeals Act 2004 (WA) 14(2)
1 mention
Sentencing Act 1995 (WA)
1 mention (from Para 5)