White v Toovey

Case [2020] WASC 208


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WHITE -v- TOOVEY [2020] WASC 208

CORAM:   DERRICK J

HEARD:   5 JUNE 2020

DELIVERED          :   12 JUNE 2020

FILE NO/S:   SJA 1017 of 2020

BETWEEN:   WILLIAM NICOLAS WHITE

Appellant

AND

MATTHEW TOOVEY

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R JOHNSTON

File Number            :   AL 2755/2019


Catchwords:

Criminal law - Appeal against sentence - Sentence of immediate imprisonment imposed - Whether magistrate made a finding that certain conduct of the appellant aggravated the seriousness of the offence without according procedural fairness to the parties - Whether magistrate treated prior conviction of the appellant as an aggravating factor - Whether length of term of imprisonment imposed was manifestly excessive - Whether wrong type of sentence was imposed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr T F Percy QC & Mr C S Woodhouse
Respondent : Mr B M Murray

Solicitors:

Appellant : Robertson Hayles Lawyers
Respondent : Director of Public Prosecutions (WA)

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

Billington v Depetro [2018] WASC 171

Cleminson v The State of Western Australia [2017] WASCA 58

Dillon v The State of Western Australia [2020] WASCA 24

Eldridge v The State of Western Australia [2020] WASCA 66

Forrest v The State of Western Australia [2019] WASCA 172

Hamlett v Whitney [2013] WASC 100

Harper v Page [2004] WASCA 267

HNA v The State of Western Australia [2016] WASCA 165

Hume v Pettyfer [2014] WASC 22

Hutchins v The State of Western Australia [2006] WASCA 258

Kabambi v The State of Western Australia [2019] WASCA 44

Kelly v The State of Western Australia [2020] WASCA 29

Kennedy v The State of Western Australia [2017] WASC 156

Law v The Queen [2019] WASCA 81

Lee Suarez v Cutler [2012] WASC 171

Mason v The State of Western Australia [2018] WASCA 43

Moran v Baker [2019] WASC 251

Musulin v The State of Western Australia [2020] WASCA 18

NTH v The State of Western Australia [2020] WASCA 22

Page v The State of Western Australia [2018] WASCA 76

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

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

Quinn v The State of Western Australia [2006] WASCA 99

Rimington v The State of Western Australia [2015] WASCA 102

Roncevic v The State of Western Australia [2012] WASCA 43

Salkilld v The State of Western Australia [2017] WASCA 168

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scolaro v Shephard [No 2] [2010] WASC 271

Trajkoski v The State of Western Australia [2018] WASCA 176

Willenberg v Downey [2015] WASC 282

Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

WRT v The State of Western Australia [2020] WASCA 68

DERRICK J:

Introduction

  1. On 27 December 2019 the appellant was charged with one offence…

Continue reading White v Toovey

Sign in free to access the full text

Details
AGLC
White v Toovey [2020] WASC 208
Case
[2020] WASC 208
Decision Date

CaseChat Overview and Summary

In the matter of White v Toovey, the appellant, White, appealed against the sentence imposed by Toovey, a magistrate, who had convicted him of a criminal offence and sentenced him to immediate imprisonment. White contended that the magistrate had erred in finding that certain conduct of the appellant aggravated the seriousness of the offence without providing procedural fairness to the parties. Additionally, White argued that the magistrate had improperly treated a prior conviction as an aggravating factor. White also submitted that the length of the term of imprisonment imposed was manifestly excessive and that the wrong type of sentence was imposed.

The legal issues before the court were whether the magistrate had failed to provide procedural fairness by making a finding that certain conduct of the appellant aggravated the seriousness of the offence, whether the magistrate had improperly treated a prior conviction as an aggravating factor, and whether the length of the term of imprisonment imposed was manifestly excessive and the wrong type of sentence was imposed. The court had to consider the principles of procedural fairness and the correct application of aggravating factors in sentencing.

The court found that the magistrate had not provided procedural fairness by making a finding that certain conduct of the appellant aggravated the seriousness of the offence. The court held that the magistrate had not given the parties an opportunity to address the issue of aggravation and that this constituted a failure to accord procedural fairness. The court also found that the magistrate had improperly treated a prior conviction as an aggravating factor. The court held that the prior conviction could not be considered as an aggravating factor because it had not been pleaded and proved as an aggravating factor at the time of sentencing. Finally, the court held that the length of the term of imprisonment imposed was manifestly excessive and that the wrong type of sentence was imposed. The court found that the sentence imposed was disproportionate to the offence committed and that a non-custodial sentence would have been more appropriate.

The appeal was allowed, and the sentence was quashed. The matter was remitted to the magistrate for resentencing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.