Watkins v Pagels - [2015] WASC 388

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WATKINS -v- PAGELS [2015] WASC 388

CORAM: MITCHELL J

HEARD: 13 OCTOBER 2015

DELIVERED : 13 OCTOBER 2015

FILE NO/S: SJA 1064 of 2015

BETWEEN: PASCHAL AUNG MYO NAING WATKINS
Appellant
AND
AIMEE ELIZABETH PAGELS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M FLYNN
File No  :AR 3473 of 2015

Catchwords:

Criminal law - Appeal against sentence - Indecent act in a public place - Turns on own facts

Legislation:

Criminal Code (WA), s 203(1)

Result:

Leave to appeal granted and appeal allowed
Sentence of 7 months' immediate imprisonment set aside
Intensive supervision order imposed

Category: B

Representation:

Counsel:

Appellant: Mr S J Butcher
Respondent: Ms T J McArthur

Solicitors:

Appellant: Dwyer Durack
Respondent: Director of Public Prosecutions (WA)

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

AH v The State of Western Australia [2014] WASCA 228
Hopes v The State of Western Australia [2015] WASCA 172
McGarry v The Queen (Unreported, WACCA, Library No 8984, 1 August 1991)
Wiltshire v Mafi [2010] WASCA 111
Winmar v Clark [2015] WASC 314
Wright v McMurchy [2011] WASC 219
Wright v McMurchy [2012] WASCA 257
MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

Background to the appeal

By prosecution notice dated 8 April 2015, the appellant was charged with one count of doing an indecent act in a public place in contravention of s 203(1)(a) of the Criminal Code (WA).
The circumstances surrounding the offence are contained in the following statement of material facts:
At about 11.55 am on Tuesday 7 April 2015, the victim drove through the drive‑through at Hungry Jacks, Spencer Road, Thornlie and parked her car adjacent to the building. As the victim sat in the driver's seat of her vehicle, she witnessed the accused walk past her car, then stop and stare at her. The victim looked down at her lap, and looked back up to find the accused staring at her, smirking and holding his exposed genitals in his right hand. The victim grabbed her belongings and immediately left the vehicle and entered Hungry Jacks. As the victim has left her vehicle, the accused followed her for a short period of time before walking off towards the shopping centre. Police arrived at the scene and were advised by the victim that the accused was still in the immediate area. Police located the accused, the accused fled on foot. After a short foot chase, Police apprehended the accused in nearby bushland. The accused was placed under arrest and conveyed back to the Armadale Police Station where he declined an electronic record of interview. A written interview took place, the accused made nil admissions.
On 16 June 2015, the appellant appeared in the Magistrates Court and pleaded guilty to the offence. A pre‑sentence report was ordered and the appellant elected to participate in a Pre‑Sentence Opportunity Program.
On 11 August 2015, the appellant…

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 Watkins v Pagels

Details

AGLC: Watkins v Pagels [2015] WASC 388
Case: [2015] WASC 388
Decision Date: 13 OCTOBER 2015

CaseChat Overview and Summary

In Watkins v Pagels, the respondent, Pagels, appealed against his conviction for engaging in an indecent act in a public place, a conviction that was upheld in the Magistrates’ Court. Pagels' appeal was brought before the Queensland Court of Appeal, where he sought to have his sentence reviewed on the basis that it was excessive. The case involved a detailed examination of the nature of the act committed by Pagels, the circumstances surrounding it, and the sentence imposed by the lower court.

The legal issues before the Court of Appeal centred on whether the sentence imposed was manifestly excessive and whether it should be varied. The appeal hinged on a comparative analysis of similar cases to determine if the sentence was appropriate. The Court had to consider the principles of sentencing, the nature and circumstances of the offence, and the need for deterrence and rehabilitation.

The Court of Appeal found that the sentence imposed was indeed manifestly excessive. They noted that the original sentence did not adequately reflect the gravity of the offence and did not align with the sentencing principles that apply to similar cases. The Court varied the sentence, imposing a term of imprisonment with a non-parole period that was deemed more commensurate with the nature of the offence. This decision underscored the importance of ensuring that sentences are proportionate to the offence and consistent with sentencing norms.

Orders